FORTUNE NATURAL RESOURCES CORPORATION
(a Delaware Corporation)
BYLAWS
ARTICLE I
OFFICES
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Section 1.1. Registered Office.
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The registered office of Fortune Natural Resources Corporation
(the "Company") in the State of Delaware shall be located at the principal place
of business in that state of the corporation or individual acting as the
Company's registered agent in the State of Delaware.
Section 1.2. Principal Executive Office.
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The principal executive office of the Company shall be located at
1661 Lincoln Boulevard, Santa Monica, California 90404.
Section 1.3. Other Offices.
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The Company may have other offices, either within or without the
State of Delaware, at such place or places as the Board of Directors from time
to time may designate or the business of the Company may require.
ARTICLE II
MEETING OF STOCKHOLDERS
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Section 2.1. Date, Time and Place.
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Meetings of stockholders of the Company shall be held on such
date and at such time and place, either within or without the State of Delaware,
as shall be designated by the Board of Directors and stated in the written
notice of the meeting or in a duly executed written waiver of notice of the
meeting.
Section 2.2. Annual Meetings.
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Annual meetings of stockholders for the election of directors to
the Board of Directors and for the transaction of such other business as may be
stated in the written notice of the meeting or as may properly come before the
meeting shall be held on such date and at such time and place either within or
without the State of Delaware, as shall be designated by the Board of Directors
and stated in the written notice of the meeting or in a duly executed written
waiver of notice of the meeting.
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Section 2.3. Special Meetings.
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Special meetings of stockholders for any purpose or purposes,
unless otherwise prescribed by the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or these Bylaws, may be called by the
Board of Directors, the Chairman of the Board or the President. Special meetings
of stockholders shall be called by the Chairman of the Board or the Secretary at
the written request of stockholders holding a majority of the aggregate number
of shares of the common stock of the Company issued and outstanding and entitled
to vote at such meeting. Such written request shall state the purpose or
purposes for which the special meeting is called. The place, date and time of a
special meeting shall be fixed by the Board of Directors or the officer calling
the meeting and shall be stated in the written notice of such meeting, which
notice shall state the purpose or purposes for which the meeting is called.
Business transacted at a special meeting shall be confined to the purpose or
purposes stated in the written notice of meeting and matters germane thereto.
Section 2.4. Notice of Meetings.
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Written notice of the place, date, and time of, and the general
nature of the business to be transacted at, a meeting of stockholders shall be
given to each stockholder of record entitled to vote at such meeting, in the
manner prescribed by Section 6.1 of these Bylaws, not less than ten (10) nor
more than sixty (60) days prior to the date of the meeting.
Section 2.5. Stockholder List.
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The Secretary or other officer in charge of the stock ledger of
the Company shall prepare and make, at least ten (10) days prior to a meeting of
stockholders, a complete list of stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares of stock of the Company registered in the name of each
stockholder. Such list shall be open to examination by 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
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list also shall be produced and kept at the place and time of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 2.6. Voting Rights.
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In order that the Company may determine the stockholders entitled
to notice of, and to vote at, a meeting of stockholders or at any adjournment(s)
thereof or to express consent or dissent to corporate action in writing without
a meeting, the Board of Directors may fix a record date in the manner prescribed
by Section 9.1 of these Bylaws. Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy in the manner prescribed by Section 2.7 of these Bylaws.
Except as specifically provided otherwise by the General Corporation Law of the
State of Delaware, the Certificate of Incorporation, or these Bylaws, each
holder of common stock entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
shall be entitled to one vote for each share of such stock registered in such
stockholder's name on the books and records of the Company as of the record
date.
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Section 2.7. Proxies.
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Each proxy shall be in writing and shall be executed by the
stockholder giving the proxy or by such stockholder's duly authorized attorney.
No proxy shall be voted or acted upon after three (3) years from its date,
unless the proxy expressly provides for a longer period. Unless and until voted,
every proxy shall be revocable at the pleasure of the person who executed it or
of his or her legal representative or assigns, except in those cases where an
irrevocable proxy permitted by the General Corporation Law of the State of
Delaware shall have been given.
Section 2.8. Quorum and Adjournment(s) of Meetings.
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Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, a majority of the aggregate number of shares of common stock
issued and outstanding and entitled to vote, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at a meeting of
stockholders. If such majority shall not be present in person or represented by
proxy at a meeting of stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the power to adjourn the
meeting from time to time until holders of the requisite number of shares of
stock entitled to vote at the meeting shall be present in person or represented
by proxy. When a meeting of stockholders is adjourned to another place, date, or
time, notice need not be given of the adjourned meeting if the place, date, and
time of such adjourned meeting are announced at the meeting at which the
adjournment is taken. At any such adjourned meeting at which a quorum shall be
present in person or represented by proxy, stockholders may transact any
business that might have been transacted at the meeting as originally noticed,
but only those stockholders entitled to vote at the meeting as originally
noticed shall be entitled to vote at any adjournment(s) thereof. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.9. Required Vote.
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Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, the affirmative vote of a majority of the shares of common stock
present in person or represented by proxy at a meeting of stockholders at which
quorum is present and entitled to vote on the subject matter (including, but not
limited to, the election of directors to the Board of Directors) shall be the
act of the stockholders with respect to the matter voted upon.
Section 2.10. Notice of Stockholder Business and Nominations.
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(A) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of persons
for election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 2.4 of these By-laws, (b) by or at the direction of the
Chairman of the Board of Directors or (c) by any stockholder of the Corporation
who is entitled to vote at the meeting, who complied with the notice procedures
set forth in clauses (2) and (3) of this paragraph (A) of this By-law and who
was a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation.
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(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than sixty days nor more than ninety days prior to the
first anniversary of the preceding year's annual meeting; PROVIDED, HOWEVER,
that in the event that the date of the annual meeting is advanced by more than
twenty days, or delayed by more than sixty days, from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of the sixtieth day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of such
meetings if first made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to any other business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (c) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made, the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation which are owned beneficially
and or record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
Corporation at least eighty days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
2.4 of these By-laws. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting by or at the
direction of the Board of Directors or by any stockholder of the Corporation who
is entitled to vote at the meeting, who complies with the notice procedures set
forth in this By-law and who is a stockholder of record at the time such notice
is delivered to the Secretary of the Corporation. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder's notice as required by paragraph
(A)(2) of this By-law shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the ninetieth day prior to
such special meeting and not later than the close of business on the later of
the sixtieth day prior to such special meeting or the tenth day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
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(C) GENERAL. (1) Only persons who are nominated in accordance
with the procedures set forth in this By-law shall be eligible to service as
director and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-laws, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this By-law and, if any proposed nomination or business is not compliance
with this By-law, to declare that such defective proposal or nomination shall
disregarded.
(2) For purposes of this By-law "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-law. Nothing in this By-law shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE III
DIRECTORS
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Section 3.1. Board of Directors.
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The business and affairs of the Company shall be managed by, or
under the direction of, a Board of Directors. The Board of Directors may
exercise all such powers of the Company and do all such lawful acts and things
on its behalf as are not by the General Corporate Law of the State of Delaware,
the Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by stockholders.
Section 3.2. Number, Election and Tenure.
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The number of directors which shall constitute the whole Board of
Directors is hereby fixed at seven. In no event shall the total number of
directors which shall constitute the whole Board of Directors be fixed by the
Board of Directors at less than three (3). The Board of Directors shall not at
any time decrease the total number of directors which shall constitute the whole
Board of Directors if to do so would shorten the term of any incumbent director.
With the exception of the first Board of Directors which shall be
elected by the incorporator of the Company, and except as provided otherwise in
these Bylaws, directors shall be elected at the annual meeting of stockholders.
The directors shall be divided as equally as the total number of directors will
permit into three classes. At the election of the first Board of Directors, the
directors of the first class shall be elected for a term of one year; the
directors of the second class for a term of two years; and the directors of the
third class for a term of three years. A each annual election thereafter, the
successors to the class of directors whose term shall expire that year shall be
elected to hold office for the term of three years, so that one-third of the
Board of Directors shall be elected annually. Each director shall hold office
until the annual meeting of stockholders next succeeding his or her election or
appointment and until his or her successor is elected and qualified or until his
or her earlier resignation or removal.
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Section 3.3. Resignation and Removal.
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Any director or member of a committee of the Board of Directors
may resign at any time upon written notice to the Board of Directors, the
Chairman of the Board, or the President. Unless specified otherwise in the
notice, such resignation shall take effect upon receipt of the notice by the
Board of Directors, the Chairman of the Board, or the President. The acceptance
of a resignation shall not be necessary to make it effective. Any director may
be removed, either with or without cause, as provided by the General Corporation
Law of the State of Delaware.
Section 3.4. Vacancies and Newly-Created Directorships.
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Vacancies occurring for any reason and newly-created
directorships resulting from an increase in the authorized number of directors
which shall constitute the whole Board of Directors, as fixed pursuant to
Section 3.2 of these Bylaws, shall be filled by the election of a new director
or directors at a special meeting of stockholders called for such purpose. Any
director so chosen shall hold office until the annual meeting of stockholders
next succeeding his or her selection or appointment and until his or her
successor shall be elected and qualified, or until his or her earlier
resignation or removal.
Section 3.5. Compensation.
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Each director on the Board of Directors and on any committee
thereof shall receive for services rendered as a director and committee member
such reasonable compensation, if any, as may be fixed from time to time by the
Board of Directors. The directors and committee members also may be paid their
reasonable expenses, if any, in attending meetings of the Board of Directors or
any committee thereof. Nothing in these Bylaws shall be construed to preclude
any director from serving the Company in any other capacity as an officer, agent
or otherwise and receiving compensation therefor.
ARTICLE IV
MEETING OF THE BOARD OF DIRECTORS
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Section 4.1. Date, Time and Place.
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Meetings of the Board of Directors shall be held on such date and
at such time and place, either within or without the State of Delaware, as shall
be determined by the Board of Directors pursuant to these Bylaws.
Section 4.2. Annual Meetings.
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After the annual meeting of stockholders, the newly elected Board
of Directors may hold a meeting, on such date and at such time and place as
shall be determined by the Board of Directors for the purpose of organization,
election of officers and such other business that may properly come before the
meeting. Such meeting may be held without notice.
Section 4.3. Regular Meetings.
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Regular meetings of the Board of Directors may be held without
notice on such date and at such time and place as shall be determined from time
to time by the Board of Directors.
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Section 4.4. Special Meetings.
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Special meetings of the Board of Directors may be held at any
time upon the call of the Chairman of the Board, the President or the Secretary
by means of oral, telephonic, written telegraphic, cable or other similar
notice, duly given, delivered, sent or mailed to each director, in the manner
prescribed by Section 6.1 of these Bylaws. Special meetings of the Board of
Directors may be held at any time without notice if all of the directors are
present or if those directors not present waive notice of the meeting in writing
either before or after the date of the meeting.
Section 4.5. Quorum.
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A majority of the whole Board of Directors as fixed pursuant to
Section 3.2 of these Bylaws shall constitute a quorum for the transaction of
business at a meeting of the Board of Directors. If a quorum shall not be
present at a meeting of the Board of Directors, 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 4.6. Required Vote.
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Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the affirmative vote of a majority of
the directors present at a meeting of the Board of Directors at which a quorum
is present shall be the act of the Board of Directors with respect to the matter
voted upon.
Section 4.7. Action Without Meeting.
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Any action required or permitted to be taken at a meeting of the
Board of Directors, or committee thereof, may be taken by directors without a
meeting if all of the members of the Board of Directors, or committee thereof,
consent thereto in writing and such writing is filed with the minutes of
proceedings of the Board of Directors, or committee thereof.
Section 4.8. Telephone Meetings.
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Members of the Board of Directors, or any committee thereof, may
participate in a meeting of the Board of Directors, or committee thereof, by
means of conference telephone or similar communications equipment by means of
which all of the members participating in the meeting can hear each other.
Participation by members of the Board of Directors, or any committee thereof, by
such means shall constitute presence in person of such members at such meeting.
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ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
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Section 5.1. Designation and Powers.
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The Board of Directors may designate one or more committees from
time to time in its discretion, by resolution passed by the affirmative vote of
a majority of the whole Board of Directors as fixed pursuant to Section 3.2 of
these Bylaws. Each committee shall consist of one or more of the directors on
the Board of 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 the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all of the
powers and authority of the Board of Directors in the management of the business
and affairs of the Company and may authorize the corporate seal of the Company
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation or
these Bylaws, adopting an agreement of merger or consolidation, recommending to
stockholders the sale, lease, or exchange of all or substantially all of the
Company's assets, or recommending to stockholders a dissolution of the Company
or a revocation of a dissolution; and, unless the resolution of the Board of
Directors expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock of the
Company or any class or series of stock. Each committee shall keep regular
minutes of its meetings and shall report the same to the Board of Directors when
requested to do so.
ARTICLE VI
NOTICES
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Section 6.1. Delivery of Notice.
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Notices to stockholders and, except as permitted below, to
directors on the Board of Directors shall be in writing and may be delivered by
mail or by messenger. Notice by mail shall be deemed to be given at the time
when such notice is deposited in a United States post office or letter box,
enclosed in a postpaid sealed wrapper, and addressed to stockholder or director
at his respective address appearing on the books and records of the Company,
unless such stockholder or director shall have filed with the Secretary a
written request that notices intended for such stockholder or director be mailed
or delivered to some other address, in which case the notice shall be mailed to
or delivered at the address designated in such request. Notice by messenger
shall be deemed to be given when such notice is delivered to the address of a
stockholder or director as specified above. Notices to directors also may be
given orally in person or by telephone, or by telex, telegram, cable, or other
similar means, or by leaving the notice at the residence or usual place of
business of a director. Notice by oral communication, telex, telegram, cable, or
other similar means shall be deemed to be given upon dispatch of such notice.
Notice by messenger shall be deemed to be given when such notice is delivered to
a director's residence or usual place of business. Notices, requests, and other
communications required or permitted to be given or communicated to the Company
by the Certificate of Incorporation, these Bylaws, or any other agreement shall
be in writing and may be delivered by messenger, United States mail, telex,
telegram, cable, or other similar means. Notice to the Company shall be deemed
to be given upon actual receipt of such notice by the Company.
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Section 6.2. Waiver of Notice.
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Whenever notice is required to be given by the General
Corporation law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, a written waiver of notice signed by the person entitled thereto,
whether before or after the time stated in the notice, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders, Board of Directors, or committee of
the Board of Directors need be specified in any written waiver of notice.
ARTICLE VII
OFFICERS
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Section 7.1. Officers.
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At its annual meeting, or at such other meeting as it may
determine, or by unanimous written consent of the directors without meeting, the
Board of Directors shall elect such officers as the Board of Directors from time
to time may designate or the business of the Company may require. The Chairman
of the Board shall be selected from among the directors on the Board of
Directors, but no other executive officer need be a member of the Board of
Directors. Any number of offices may be held by the same person.
Section 7.2. Other Officers and Agents.
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The Board of Directors also may elect such other officers and
agents as the Board of Directors from time to time may determine to be
advisable. Such officers and agents shall serve for such terms, exercise such
powers, and perform such duties as shall be specified from time to time by the
Board of Directors.
Section 7.3. Tenure, Resignation, Removal and Vacancies.
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Each officer of the Company shall hold his office until his or
her successor is elected and qualified, or until his or her earlier resignation
or removal; provided, that if the term of office of any officer elected pursuant
to Section 7.2 of these Bylaws shall have been fixed by the Bylaws or determined
by the Board of Directors or other governing body, such person shall cease to
hold office no later than the date of expiration of such term, regardless of
whether any other person shall have been elected or appointed to succeed such
person. Each officer shall hold his or her office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any
officer elected by the Board of Directors may be removed at any time, with or
without cause, by the Board of Directors; provided, that any such removal shall
be without prejudice to the rights, if any, of the officer so employed under any
employment contract or other agreement with the Company. Any officer may resign
at any time upon written notice to the Board of Directors, the Chairman of the
Board, or the President. Unless specified otherwise in the notice, such
resignation shall take effect upon receipt of the notice by the Board of
Directors, the Chairman of the Board, or the President. The acceptance of the
resignation shall not be necessary to make it effective. Any vacancy occurring
in any office of the Company by death, resignation, removal, or otherwise shall
be filled by the Board of Directors and such successor or successors shall hold
office for such term as may be specified by the Board of Directors.
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Section 7.4. Compensation.
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The salaries or other compensation of officers and agents of the
Company elected by the Board of Directors shall be fixed from time to time by
the Board of Directors.
Section 7.5. Authority and Duties.
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All officers and agents, as between themselves and the Company,
shall have such authority and perform such duties in the management of the
Company as may be provided in these Bylaws and as generally pertain or are
necessarily incidental to the particular office or agency. In addition to the
powers and duties hereinafter specifically prescribed for certain officers of
the Company, the Board of Directors from time to time may impose or confer upon
any of the officers such additional duties and powers as the Board of Directors
may see fit, and the Board of Directors from time to time may impose or confer
any or all of the duties and powers hereinafter specifically prescribed for any
officer upon any other officer or officers. The Board of Directors may give
general authority to any officer to affix the corporate seal of the Company and
to attest the affixing by his or her signature.
Section 7.6. The Chairman of the Board.
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The Chairman of the Board shall preside at all meetings of
stockholders and of the Board of Directors, and shall be a member of all
standing committees of the Board of Directors. The Chairman of the Board shall
have general management of the business of the Company, shall see that all
resolutions and orders of the Board of Directors are carried into effect, shall
vote, in the name of the Company, stock or securities in other corporations or
associations held by the Company unless another officer is designated by the
Board of Directors for that purpose, and in connection with all of the foregoing
shall be authorized to delegate to the President and the other officers such of
his or her powers and such of his or her duties as he or she may deem to be
advisable.
Section 7.7. The President.
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The President shall have general and active management,
supervision, direction, and control of the business of the Company. He or she
shall assist the Chairman of the Board in the management of the Company and in
the absence or disability of or upon the delegation by the Chairman of the Board
he or she shall preside at all meetings of stockholders and of the Board of
Directors. He or she shall report from time to time to the Board of Directors
all matters within his or her knowledge which the interest of the Company may
require to be brought to the attention of the Board of Directors. The President
shall have the general powers and duties of supervision and management usually
vested in the office of president of a corporation and shall exercise such
powers and perform such duties as generally pertain or are necessarily
incidental to his or her office and shall have such other powers and perform
such other duties as may be specifically assigned to him or her from time to
time by the Board of Directors or the Chairman of the Board.
Section 7.8. The Vice President(s).
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The Vice President, if any be so appointed by the Board of
Directors, or if there be more than one, the Vice Presidents, shall perform such
duties as may be specifically assigned to them from time to time by the Board of
Directors, the Chairman of the Board, or the President. In case of the absence
or disability of the President, and if the Board of Directors, the Chairman of
the Board, or the President has so authorized, the Vice President, or if there
be more than one Vice President, such Vice President as the Board of Directors,
the Chairman of the Board, or the President shall designate, shall perform the
duties of the office of the President.
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Section 7.9. The Treasurer.
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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 and records belonging to the Company. He or she 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
or any officer of the Company authorized by the Board of Directors to make such
designation. The Treasurer shall exercise such powers and perform such duties as
generally pertain or are necessarily incidental to his or her office and shall
perform such other duties as may be specifically assigned to him or her from
time to time by the Board of Directors, the Chairman of the Board, or the
President. The Treasurer shall disburse the funds of the Company as may be
ordered by the Board of Directors, the Chairman of the Board, or the President,
taking proper vouchers for such disbursements. He or she shall render to the
Chairman of the Board, the President, and the Board of Directors (at its regular
and special meetings), or whenever any of them may request it, an account of all
of his or her transactions as Treasurer and of the financial condition of the
Company. If required by the Board of Directors, he or she shall give the Company
a bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his or her
office and for the restoration to the Company, in case of his or her death,
resignation, retirement, or removal from office, of all books, papers, vouchers,
moneys, and other property of whatever kind in his or her possession or under
his or her control belonging to the Company.
Section 7.10. The Assistant Treasurer(s).
--------------------------
The Assistant Treasurer, if any be so appointed by the Board of
Directors, or if there be more than one, the Assistant Treasurers, shall perform
such duties as may be specifically assigned to them from time to time by the
Board of Directors, the Chairman of the Board, or the President. In case of the
absence or disability of the Treasurer, and if the Board of Directors, the
Chairman of the Board, or the President has so authorized, the Assistant
Treasurer, or if there be more than one Assistant Treasurer, such Assistant
Treasurer as the Board of Directors, the Chairman of the Board, or the President
shall designate, shall perform the duties of the office of the Treasurer.
Section 7.11. The Secretary.
-------------
The Secretary shall attend all meetings of the Board of Directors
and all meetings of stockholders and record all votes and record the proceedings
of such meetings in a book to be kept for that purpose. He or she shall perform
like duties for any committees of the Board of Directors when required or
requested. He or she shall give, or cause to be given, notice of all meetings of
stockholders and, when necessary, of the Board of Directors. The Secretary shall
exercise such powers and perform such duties as generally pertain or are
necessarily incidental to his or her office and shall perform such other duties
as may be specifically assigned to him or her from time to time by the Board of
Directors, the Chairman of the Board, or the President. The Secretary shall have
custody of the corporate seal of the Company and he or she, or an Assistant
Secretary, if any, shall have authority to affix the corporate seal to any
instrument requiring it, and when so affixed it shall be attested by his or her
signature or by the signature of an Assistant Secretary.
Section 7.12. The Assistant Secretary(ies).
----------------------------
The Assistant Secretary, if any be so appointed by the Board of
Directors, or if there be more than one, the Assistant Secretaries, shall
perform such duties as may be specifically assigned to them from time to time by
the Board of Directors, the Chairman of the Board, or the President. In case of
the absence or disability of the Secretary, and if the Board of Directors, the
Chairman of the Board, or the President has so authorized, the Assistant
Secretary, or if there be more than one Assistant Secretary, such Assistant
Secretary as the Board of Directors, the Chairman of the Board or the President
shall designate, shall perform the duties of the office of the Secretary.
11
ARTICLE VIII
CERTIFICATES OF STOCK
---------------------
Section 8.1. Form and Signature.
------------------
The stock certificates representing the stock of the Company
shall be in such form or forms not inconsistent with the General Corporation Law
of the State of Delaware, the Certificate of Incorporation and these Bylaws as
the Board of Directors shall approve from time to time. Stock certificates shall
be numbered, the certificates for the shares of stock to be numbered
consecutively, and shall be entered in the books and records of the Company as
such certificates are issued. No certificate shall be issued for any share until
the consideration therefor has been fully paid. Stock certificates shall exhibit
the holder's name, certify the class and series of stock and the number of
shares in such class and series of stock owned by the holder, and shall be
signed (a) by the Chairman of the Board, or any Vice Chairman of the Board, or
the President, or a Vice President, and (b) by the Treasurer, or any Assistant
Treasurer, or the Secretary, or any Assistant Secretary. Any or all of the
signatures on a stock certificate may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed on a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, such certificate may be
issued by the Company with the same effect as if he or she were such officer,
transfer agent, or registrar on the date of issuance.
Section 8.2. Lost, Stolen or Destroyed Certificates.
--------------------------------------
The Board of Directors may direct that a new stock certificate be
issued in place of any certificate theretofore issued by the Company which is
alleged to have been lost, stolen, or destroyed, upon the making of an affidavit
of that fact by the person, or his or her legal representative, claiming the
certificate of stock to be lost, stolen, or destroyed. When authorizing such
issuance of a new certificate, the Board of Directors, in its discretion and as
a condition precedent to the issuance thereof, may require the owner of the
lost, stolen, or destroyed certificate, or his or her 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 the Board of Directors shall direct as
indemnity against any claim that may be made against the Company, any transfer
agent, or any registrar on account of the alleged loss, theft, or destruction of
any such certificate or the issuance of such new certificate.
Section 8.3. Registration of Transfer.
------------------------
Shares of common stock of the Company shall be transferable only
upon the Company's books by the holders thereof in person or by their duly
authorized attorneys or legal representatives, and upon such transfer the old
certificates shall be surrendered to the Company by the delivery thereof to the
person in charge of the stock and transfer books and ledgers of the Company, or
to such other person as the Board of Directors may designate. Upon surrender to
the Company of a certificate for shares, duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, the Company shall
issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction on its books and records.
12
ARTICLE IX
GENERAL PROVISIONS
------------------
Section 9.1. Record Date.
-----------
In order that the Company may determine the stockholders entitled
to notice of, and to vote at, a meeting of stockholders, or to express consent
or dissent to corporate action in writing without 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
of Directors may fix, in advance, a record date which shall not be more than
sixty (60) nor less than ten (10) days prior to 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, and to vote at, a meeting of
stockholders shall apply to any adjournment(s) of such meeting; provided,
however, that the Board of Directors may, in its discretion, and shall, if
otherwise required by these Bylaws fix a new record date for the adjourned
meeting.
Section 9.2. Registered Stockholders.
-----------------------
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Company shall be entitled to
recognize the exclusive right of a person registered on its books and records as
the owner of shares of stock of the Company to receive dividends and to vote as
such owner, shall be entitled to hold such person liable for calls and
assessments, and shall not be bound to recognize any equitable or other claim
to, or interest in, such stock on the part of any other person, whether or not
the Company shall have express or other notice thereof.
Section 9.3. Dividends.
---------
The Board of Directors may declare and pay dividends ratably,
share for share, on the Company's common stock in all sums so declared, out of
funds legally available therefor.
Section 9.4. Dividend Declarations.
---------------------
Dividends on the common stock of the Company may be declared
quarterly or semiannually as the Board of Directors may from time to time, in
its discretion, determine.
Section 9.5. Checks and Notes.
----------------
All checks and drafts on the bank accounts of the Company, all
bills of exchange and promissory notes of the Company, and all acceptances,
obligations, and other instruments for the payment of money drawn, signed, or
accepted by the Company shall be signed or accepted, as the case may be, by such
officer or officers, agent or agents, and in such manner as shall be thereunto
authorized from time to time by the Board of Directors or by officers of the
Company designated by the Board of Directors to make such authorization.
Section 9.6. Fiscal Year.
-----------
The fiscal year of the Company shall commence on January 1 and
end on December 31 of each year, unless otherwise fixed by resolution of the
Board of Directors.
13
Section 9.7. Corporate Seal.
--------------
The Corporate seal shall be circular in form and shall have
inscribed thereon the name of the Company, the year of its organization, and the
words "Corporate Seal" and "Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.8. Voting of Securities of Other Issuers.
-------------------------------------
In the event that the Company shall own and/or have power to vote
any securities (including, but not limited to, shares of stock) of any other
issuer, such securities shall be voted by the Chairman of the Board as provided
in Section 7.6 of these Bylaws, or by such other person or persons, to such
extent, and in such manner as may be determined by the Board of Directors. If
the Company shall be a general partner in any partnership, the acts of the
Company in such capacity may be approved by the Board of Directors and taken by
the officers as may be authorized or determined by the Board of Directors from
time to time.
Section 9.9. Transfer Agents.
---------------
The Board of Directors may make such rules and regulations as it
may deem expedient concerning the issuance, transfer, and registration of
securities (including, but not limited to, stock) of the Company. The Board of
Directors may appoint one or more transfer agents and/or one or more registrars
and may require all stock certificates and other certificates evidencing
securities of the Company to bear the signature of either or both.
Section 9.10. Books and Records.
-----------------
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the books and records of the Company
may be kept at such place or places, either within or without the State of
Delaware, as may be designated by the Board of Directors.
14
ARTICLE X
INDEMNIFICATION
---------------
Section 10.1. Indemnification and Insurance.
-----------------------------
(a) Right to Indemnification. Each person who was or is a party
or is threatened to be made a party to or is involved in any action, suit or
proceedings, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action or
inaction in an official capacity or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Company to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended, against
all costs, charges, expenses, liabilities and losses (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 be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (b) hereof, the Company shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company. The right to
indemnification conferred in this Section 10.1 shall be a contract right and
shall include the right to be paid by the Company the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the General Corporation Law of the State of Delaware 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 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 Company 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 10.1 or
otherwise. The Company may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Section 10.1 is not paid in full by the Company within thirty days
after a written claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company 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 Company)
that the claimant has failed to meet a standard of conduct which makes it
permissible under the General Corporation Law of the State of Delaware for the
Company to indemnify the claimant for the amount claimed. Neither the failure of
the Company (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 such standard of conduct nor an actual determination
by the Company (including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such standard of conduct, shall
be a defense to the action or create a presumption that the claimant has failed
to meet such standard of conduct.
15
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 10.1 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Company may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any such 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 General Corporation Law of the State of Delaware.
(e) Expenses as a Witness. To the extent that any director,
officer, employee or agent of the Company is by reason of such position, or a
position with another entity at the request of the Company, a witness in any
action, suit or proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his or her behalf
in connection therewith.
(f) Indemnity Agreements. The Company may enter into agreements
with any director, officer, employee or agent of the Company providing for
indemnification to the full extent permitted by the General Corporation Law of
the State of Delaware.
ARTICLE XI
AMENDMENT TO THESE BYLAWS
-------------------------
Section 11.1. By the Stockholders.
-------------------
These Bylaws may be amended or repealed in whole or in part and
new Bylaws may be adopted by the affirmative vote of a majority of the aggregate
number of shares of the common stock issued and outstanding and entitled to vote
on the subject matter, present in person or represented by proxy at a meeting of
stockholders provided that notice thereof is stated in the written notice of the
meeting.
Section 11.2. By the Board of Directors.
-------------------------
These Bylaws may be amended or repealed in whole or in part and
new Bylaws may be adopted by a majority of the Board of Directors as provided by
Section 109(a) of the General Corporation Law of the State of Delaware and the
Certificate of Incorporation.
16
CERTIFICATE OF SECRETARY OF FORTUNE NATURAL RESOURCES CORPORATION
(a Delaware corporation)
I hereby certify that I am the duly elected and acting Secretary
of said corporation and that the foregoing Bylaws, comprising 16 pages,
constitute the Bylaws of said corporation as duly adopted at a meeting of the
Board of Directors held on July 13, 1987.
/s/ Cecil O. Basenberg
---------------------------------
Cecil O. Basenberg,
Secretary