Registration of Securities of a Successor Issuer — Form 8-B
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-B12B Form 8-B 9 45K
2: EX-1.1 Agreement and Plan of Reorganization 15 61K
3: EX-3.1 Certificate of Incorporation 20 56K
4: EX-3.2 By-Laws 19 48K
5: EX-4.1 First Supplement Indenture to Senior Indenture 4 20K
6: EX-4.2 1st and 2nd Supplemental Indenture to 2nd Snr Indn 24 99K
7: EX-4.3 First Supplemental Indenture to Subordinated Indnt 4 18K
8: EX-4.4 Rights Agreement 49 211K
9: EX-8.1 Vinson & Elkins Opinion 16 70K
10: EX-21 Subsidiaries 7 32K
EXHIBIT 3.2
HALLIBURTON COMPANY
BY-LAWS
AS AMENDED
Offices
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1. The principal office shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the agent in charge thereof shall be
The Corporation Trust Company of America, and the Corporation shall also have
offices in the Cities of Dallas and Houston, State of Texas, in the City of
Duncan, State of Oklahoma, and at such other places as the Board of Directors
may, from time to time, appoint.
Seal
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2. The corporate seal shall have inscribed thereon around the margin the
words "Halliburton Company" and "Delaware" and across the center thereof the
words "Corporate Seal".
Stockholders' Meetings
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3. All meetings of the stockholders for the election of Directors shall be
held in the City of Dallas, State of Texas, at such place as may be fixed from
time to time by the Board of Directors or at such other 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. Meetings of
stockholders for any other purpose may be held at such time and place within or
without the State of Delaware, as shall be stated in the notice of the meeting.
4. Annual meetings of the stockholders shall be held on the third Tuesday
in the month of May each year if not a legal holiday, and if a legal holiday,
then on the next succeeding business day, at 9:00 a.m., or at such other date
and time as shall be designated, from time to time, by the Board of Directors
and stated in the notice of meeting, at which time they shall elect
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by a plurality vote a Board of Directors, in the manner provided for in the
Certificate of Incorporation, and transact such other business as may be brought
before the meeting.
5. At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board, (ii) otherwise properly brought before the meeting by or at the
direction of the Board, or (iii) otherwise properly brought before the meeting
by a stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation, not less than ninety (90)
days prior to the first anniversary date of the immediately preceding annual
meeting of stockholders of the Corporation. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder, (d) a representation that the stockholder or a qualified
representative of the stockholder intends to appear in person at the meeting to
bring the proposed business before the annual meeting, and (e) any material
interest of the stockholder in such business.
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Notwithstanding anything in the By-laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 5; provided, however, that nothing in this Section 5 shall
be deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 5, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 5, a stockholder
shall also comply with all applicable requirements of the Securities and
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder with respect to the matters set forth in this Section 5.
6. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nominations of persons
for election to the Board of Directors of the Corporation may be made at a
meeting of stockholders (i) by or at the direction of the Board of Directors by
any nominating committee or person appointed by the Board or (ii) by any
stockholder of the Corporation entitled to vote for the election of Directors at
the meeting and who complies with the notice procedures set forth in this
Section 6. Such nominations, other than those made by or at the direction of
the Board, shall be made pursuant to timely notice in writing to the Secretary.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation (a) with respect
to an election to
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be held at the annual meeting of stockholders, not less than ninety (90) days
prior to the first anniversary date of the immediately preceding annual meeting
of stockholders of the Corporation and (b) with respect to an election to be
held at a special meeting of stockholders, not later than the close of business
on the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed to stockholders or public disclosure of the date of
the special meeting was made, whichever first occurs. Such stockholder's notice
to the Secretary shall set forth (x) as to each person whom the stockholder
proposes to nominate for election or re-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 and number of shares of
capital stock of the Corporation which are beneficially owned by the person, and
(iv) all other information relating to the person that is required to be
disclosed in solicitations for proxies for election of Directors, or is
otherwise required, pursuant to Regulation 14A under the Securities Exchange Act
of 1934 as amended (including such person's written consent to being named in
the proxy statement as a nominee and to serve as a Director, if elected; and (y)
as to the stockholder giving the notice (i) the name and address, as they appear
on the Corporation's books, of such stockholder and (ii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as Director of the
Corporation. Other than Directors chosen pursuant to the provisions of Section
13, no person shall be eligible for election as a Director of the Corporation
unless nominated in accordance with the procedures set forth herein.
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The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 6, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 6.
7. The holders of a majority of the voting stock issued and outstanding,
present in person, or represented by proxy shall constitute a quorum at all
meetings of the stockholders for the transaction of business.
8. At each meeting, every stockholder shall be entitled to vote in person
or by proxy and shall have one (1) vote for each share of voting stock
registered in his name on the stock books except as provided in Section 13
hereof.
9. Written notices of the annual meeting shall be mailed not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting directed to his address as it
appears on the records of the Corporation.
10. A complete list of the stockholders entitled to vote at each meeting
of the stockholders, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder shall be prepared and shall be open to the examination of any
stockholder, for any purpose germane to the meeting during ordinary business
hours, for a period of at least ten (10) 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 meeting,
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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 who is present.
11. Special meetings of the stockholders may be called by the Chairman of
the Board (if any), by the President, by the Board of Directors, or by
stockholders owning a majority in the amount of the entire stock of the
Corporation with voting privileges issued and outstanding.
12. Written notice of a special meeting of stockholders shall be mailed not
less than ten (10) nor more than fifty (50) days before the date of the meeting
to each stockholder entitled to vote at such meeting directed to his address as
it appears on the records of the Corporation.
13. Cumulative voting shall not be allowed. Each stockholder shall be
entitled, at all elections of Directors of the Corporation, to as many votes as
shall equal the number of shares of stock held and owned by him and entitled to
vote at such meeting under Article NINTH of the Certificate of Incorporation, as
amended, for as many Directors as there are to be elected, unless such right to
vote in such manner is limited or denied by other provisions of the Certificate
of Incorporation.
Vacancies caused by the death or resignation of any Director and newly
created directorships resulting from any increase in the authorized number of
Directors may be filled by a vote of at least a majority of the Directors then
in office, though less than a quorum, and the Directors so chosen shall hold
office until the next annual meeting of the stockholders.
Directors
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14. The property and business of the Corporation shall be managed by its
Board of Directors. The number of Directors which shall constitute the whole
Board shall not be less than
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eight (8) nor more than twenty (20). Within the limits above specified, the
number of Directors shall be determined by resolution of the Board of Directors
or by the stockholders at the annual meeting. Each Director shall be elected to
serve for the term of one (1) year and until his successor shall be elected and
shall qualify.
15. The Directors shall hold their meetings in Dallas, Texas, and at such
other places as they may designate, and may keep the books of the Corporation
outside of Delaware, in the City of Duncan, Oklahoma, in the City of Dallas,
Texas, or at such other places as they may, from time to time, determine.
16. In addition to the powers and authorities by these By-laws expressly
conferred upon them, the Board may exercise all such powers of the Corporation
and do all such lawful acts and things as are permitted by the Certificate of
Incorporation and not by statute required to be exercised or done by the
stockholders.
17. Each member of the Board shall be paid such fee as the Board of
Directors may, from time to time, by resolution determine.
Meetings of the Board
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18. Immediately after each annual stockholders' meeting, the newly elected
Board shall meet and for the ensuing year elect such officers with such titles
and duties as may be necessary to enable the Corporation to sign instruments and
stock certificates which comply with Sections 103(a)(2) and 158 of Chapter 1,
General Corporation Laws of the State of Delaware, and may elect such other
officers as may be specified in these By-laws or as may be determined by the
Board and shall attend to such other business as may come before the Board.
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19. Regular meetings of the Board may be held without notice at such time
and place as shall be determined by the Board.
20. At all meetings of the Board, a majority of Directors shall be
necessary to constitute a quorum.
21. Special meetings of the Board may be called by the Chairman of the
Board (if any) or the President upon one (1) day's notice to each Director
either personally or in the manner permitted by Section 34 hereof. Special
meetings shall be called by the Chairman of the Board (if any), the President or
Secretary in like manner and on like notice on the written request of two (2)
Directors.
Officers
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22. The officers of the Corporation shall be a President, one or more Vice
Presidents (any one or more of whom may be designated Executive Vice President
or Senior Vice President), a Secretary, a Treasurer, a Controller, one or more
Assistant Secretaries and, if the Board of Directors so elects, a Chairman of
the Board. Such officers shall be elected or appointed by the Board of
Directors. All officers as between themselves and the Corporation, shall have
such authority and perform such duties in the management of the Corporation as
may be provided in these By-laws, or, to the extent not provided, as may be
prescribed by the Board of Directors or by the President acting under authority
delegated to him by the Board.
23. The Chairman of the Board (if any) and the President shall be members
of the Board. The other officers need not be members of the Board. Any two (2)
or more offices may be held by the same person.
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24. The Board may elect or appoint such other officers and agents as it
may deem necessary, who shall have such authority and shall perform such duties
as shall be prescribed by the Board.
25. The officers of the Corporation shall hold office for one (1) year
from date of their election and until their successors are chosen and qualify.
Any officer elected or appointed by the Board may be removed at any time by the
affirmative vote of a majority of the whole Board.
Vacancies
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26. If any office of the Corporation is vacant for any reason, the Board
of Directors may choose a successor, who shall hold office for the unexpired
term, or the powers or duties of any such office may be delegated as the Board
may determine.
Duties of Officers May Be Delegated
-----------------------------------
27. In case of the absence, inability or refusal to act of any officer,
the Board may delegate the powers or duties of such officer to any other
officer, for the time being.
Certificate of Stock
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28. The Board of Directors may make such rules and regulations as it
may deem expedient for the issuance, transfer and registration of certificates
for shares of stock of the Corporation, including the appointment of transfer
agents and registrars.
Such certificates shall be numbered and entered on the books of the
Corporation as they are issued, and shall set forth the holder's name and number
of shares and shall be impressed with the corporate seal or bear a facsimile
thereof, and shall be signed by the Chairman of the Board (if any), the
President or any Vice President and the Secretary or Assistant Secretary of the
Corporation and countersigned by an independent transfer agent and registered by
an
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independent registrar. Any or all of the signatures may be facsimiles unless
the regulations of the New York Stock Exchange then in effect shall require to
the contrary. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall cease to
be such officer, transfer agent or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Transfer of Stock
-----------------
29. Transfer of stock shall be made on the books of the Corporation
only upon written order of the person named in the certificate or his attorney,
lawfully constituted in writing and upon surrender of such certificate.
30. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, 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 may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
31. All checks, unless otherwise directed by the Board, shall be
signed by the Treasurer or Assistant Treasurer and countersigned by the Chairman
of the Board (if any),
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President, any Vice President or the Controller. The Treasurer or Assistant
Treasurer, Chairman of the Board (if any), President, any Vice President, the
Controller, or any one of them, may appoint such officers or employees of the
Corporation as the one or ones so making the appointment shall deem advisable to
audit and approve Corporation vouchers and checks and to sign such checks with
an approved mechanical check-signer. Any officer or employee so designated to
audit, approve or sign checks shall execute a bond to the Corporation in such
amount as the Directors, from time to time, may designate, and with sureties
satisfactory to the Directors. All notes, debentures and bonds, unless
otherwise directed by the Board, or unless otherwise required by law, shall be
signed by the Treasurer or Assistant Treasurer and countersigned by the Chairman
of the Board (if any), President or any Vice President.
Dividends
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32. Dividends upon the capital stock, when earned, may be declared by
the Board at any regular or special meeting.
33. Before payment of any dividend, there shall be set aside out of
the surplus or net profits of the Corporation such sum or sums as the Directors,
from time to time, think proper as a reserve fund to meet contingencies, or for
such other purposes as the Directors shall think conducive to the interest of
the Corporation.
34. Whenever, under the provisions of these By-laws, notice is
required to be given it shall not be construed to mean personal notice, but such
notice may be given in writing by mail, addressed to such stockholder, officer
or Director, at such address as appears on the records of the Corporation, 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. Notice may also be
given
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by prepaid telegram, telex or facsimile transmission, which notice shall be
deemed to have been given when sent or transmitted.
35. Any stockholder, Director or officer may waive any notice required to
be given under these By-laws.
36. These By-laws may be altered or repealed at any regular meeting
of the stockholders, or at any special meeting of the stockholders at which a
quorum is present or represented, provided notice of the proposed alteration or
repeal be contained in the notice of such special meeting, by the affirmative
vote of the majority of the stockholders entitled to vote at such meeting and
present or represented thereat, or by the affirmative vote of the majority of
the Board of Directors at any regular meeting of the Board, or at any special
meeting of the Board, if notice of the proposed alteration or repeal be
contained in the notice of such special meeting; provided, however, that no
change in these By-laws setting the time or place of the meeting for the
election of Directors shall be made within sixty (60) days next before the day
on which such meeting is to be held, and that in case of any change in such time
or place, notice thereof shall be given to each stockholder in person or by
letter mailed to his last known post office address at least twenty (20) days
before the meeting is held.
Provisions for National Emergencies
-----------------------------------
37. During periods of emergency resulting from an attack on the
United States or on a locality in which the Corporation conducts its business or
customarily holds meetings of its Board of Directors or its stockholders, or
during any nuclear or atomic disaster, or during the existence of any
catastrophe, or other similar emergency condition, the following provisions
shall apply notwithstanding any different provisions elsewhere contained in
these By-laws:
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(a) Whenever, during such emergency and as a result thereof, a quorum
of the Board of Directors or a standing committee thereof cannot readily be
convened for action, a meeting of such Board or committee thereof may be called
by any officer or Director by a notice of the time and place given only to such
of the Directors as it may be feasible to reach at the time and by such means as
may be feasible at the time, including publications or radio. The Director or
Directors in attendance at the meeting shall constitute a quorum; provided,
however, that the officers or other persons present who have been designated on
a list approved by the Board before the emergency, all in such order of priority
and subject to such conditions and for such period of time as may be provided in
the resolution approving such list, or in the absence of such a resolution, the
officers of the Corporation who are present, in order of rank, and within the
same rank in order of seniority, shall to the extent required to provide a
quorum be deemed Directors for such meeting.
(b) The Board, either before or during any such emergency, may
provide, and from time to time modify, lines of succession in the event that
during such emergency any or all officers or agents of the Corporation shall for
any reason be rendered incapable of discharging their duties.
(c) The Board either before or during any such emergency, may,
effective in the emergency, change the head office or designate several
alternative head offices or regional offices, or authorize the officers so to
do.
(d) No officer, Director or employee acting in accordance with this
article shall be liable except for willful misconduct.
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(e) To the extent not inconsistent with this article, all other
articles of these By-laws shall remain in effect during any emergency described
in this article and upon its termination the provisions of this article covering
the duration of such emergency shall cease to be operative.
Divisions and Divisional Officers
---------------------------------
Groups and Group Officers
-------------------------
38. (a) Divisions of the Corporation may be formed, and existing
divisions dissolved, by resolution of the Board of Directors of the Corporation
or through designation in writing by the President.
The President of the Corporation, or his delegate, shall supervise the
management and operations of its divisions and shall have the authority to
appoint the officers thereof and the power to remove them and to fill any
vacancies.
To the extent not inconsistent with these By-laws or a resolution of
the Board of Directors of the Corporation, the officers of each division shall
perform such duties and have such authority with respect to the business and
affairs of that division as may be granted, from time to time, by the President
of the Corporation, or his delegate. With respect to the affairs of such
division and in the regular course of business of such division, officers of
each division may sign contracts and other documents in the name of the
division, where so authorized; provided, however, subject to the provisions of
the next succeeding sentence of this Paragraph, that an officer of one division
shall not have authority to bind any other division of the Corporation, nor to
bind the Corporation, except as to the normal and usual business and affairs of
the division of which he is an officer. Notwithstanding the provisions of the
preceding sentence, if a division
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of the Corporation is formed to provide shared services for the Corporation
and/or its operating units, officers, to the extent that and with respect to
matters to which they have been delegated such authority in writing by the
President or his delegate, may execute contracts in the name of and bind the
Corporation or any of its divisions; provided, however, that no officer of a
division formed to perform shared services shall contract in the name of or
otherwise bind a subsidiary or other legal entity in which the Corporation owns
an interest with respect to shared services matters unless such officer of such
division taking such action (i) is an officer of such subsidiary or such other
legal entity and is duly authorized to take such action in the name of and on
behalf of such subsidiary or other legal entity or (ii) takes such action on
behalf of such subsidiary or other legal entity pursuant to the grant of a duly
authorized power of attorney. A divisional officer, unless specifically elected
to one of the designated offices of the Corporation, shall not be construed as
an officer of the Corporation.
(b) To facilitate the attainment of certain goals and objectives by
various divisions and subsidiaries of the Corporation engaged in common pursuits
or in activities within the same or similar areas of business activity, a group
or groups of such subsidiaries and divisions may be formed by resolution of the
Board of Directors of the Corporation or through designation in writing by the
President of the Corporation, or his delegate.
The activities of any such group shall be administered and coordinated
by the officers of the group and, if desired by the President of the
Corporation, or his delegate, by an operating committee. In such event, the
number of members of such operating committee shall be determined by the
President of the Corporation, or his delegate, who shall appoint the members
thereof and have the power to remove them and substitute other members. The
duties
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of any such operating committee shall be to aid in the administration and
coordination of group activities and to consult with and advise the officers of
the group in achieving goals and objectives of such group.
Officers of a group established pursuant to the provisions hereof may
include a chairman, a president, one or more vice presidents, a treasurer, a
secretary and such other officers as may facilitate operations of the group.
The President, or his delegate, shall have the authority to appoint the officers
of a group and the power to remove them and to fill any vacancies. To the
extent not inconsistent with these By-laws or a resolution of the Board of
Directors of the Corporation, the officers of each group shall have such duties
and authority with respect to the activities and affairs of the group as may be
granted, from time to time, by the President of the Corporation, or his
delegate.
Contracts may not be entered into in the name of any group, but any
officer of the group, where so authorized, may execute contracts and other
documents in the name of the Corporation on behalf of the members of the group
or any division of the Corporation that is a member of the group; provided,
however, that in no case shall an officer of the group have authority to bind
the Corporation except as to the normal and usual business and affairs of the
group of which he or she is an officer; and provided further that a group
officer may not execute contracts for any subsidiary who is a member of the
group unless (i) he or she executes the same under a duly authorized power of
attorney or (ii) he or she is also an officer of such subsidiary and executes
the contract in such capacity.
Indemnification
---------------
39. (a) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or
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investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was or has agreed to become a director or officer of the Corporation or is
or was serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving or
having agreed to serve as a director or officer shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended, (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment) against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity hereunder and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Corporation shall indemnify any such person seeking
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indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
in this Section 39 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the Delaware
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General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was
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or is rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise.
(b) If a claim under Paragraph (a) of this Section 39 is not paid in
full by the Corporation within ninety days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
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(c) The right to indemnification and the advancement and payment of
expenses conferred in this Section 39 shall not be exclusive of any other right
which any person may have or hereafter acquire under any law (common or
statutory), provision of the Certificate of Incorporation of the Corporation,
By-law, agreement, vote of stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any person who is or was serving as a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(e) If this Section 39 or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify and hold harmless each director or officer of the
Corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative to the
full extent permitted by any applicable portion of this Section 39 that shall
not have been invalidated and to the full extent permitted by applicable law.
REVISED DECEMBER 5, 1996
19
Dates Referenced Herein and Documents Incorporated by Reference
5 Subsequent Filings that Reference this Filing
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