HONDO OIL & GAS COMPANY
BYLAWS
ARTICLE I
Offices
Section 1. Principal Office. The principal office of the
Corporation shall be located in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge
thereof shall be The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have
offices at such other places, within or without the State of Delaware, as
the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
Seal
The corporate seal shall be circular in form and shall contain
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
ARTICLE III
Meeting of Stockholders
Section 1. Place of Meeting. Meetings of the stockholders for
the selection of directors shall be held at such place within the State of
New Mexico, or such other place, as the Board of Directors may fix,
provided that at least ten (10) days' notice be given to stockholders
entitled to vote thereat of the place so fixed. Each other meeting of the
stockholders may be held at such place, either within or without the State
of Delaware, as may be stated in the notice or waiver of notice of such
meeting.
Section 2. Annual Meetings. The Annual Meeting of
Stockholders shall be held on such date and at such time each year as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meeting the stockholders shall elect
directors by a plurality vote and shall transact such other business as may
properly be brought before the meeting.
Section 3. Special Meeting. Special meetings of the
stockholders for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the
Chairman of the Board of Directors, the President or by the Board of
Directors (either by written instrument signed by a majority or by
resolution adopted by a vote of the majority), and special meetings shall
be called by the Chairman, the President or the Secretary whenever
stockholder owning a majority of the capital stock issued, outstanding and
entitled to vote so request in writing. Such request shall state the
purpose or purposes of the proposed meeting.
Section 4. Notice. Written or printed notice of every meeting
of stockholders, annual or special, stating the time and place thereof,
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and, if a special meeting, the purpose or purposes in general terms for
which the meeting is called shall not less than ten (10) days before such
meeting be served upon or mailed to each stockholder entitled to vote
thereat, at his address as it appears upon the stock records of the
Corporation or, if such stockholder shall have filed with the Secretary of
the Corporation a written request that notices intended for him be mailed
to some other address, then to the address designated in such request.
Notice of the time, place and/or purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote
thereat shall attend either in person or by proxy, or if every absent
stockholder entitled to such notice shall in writing, filed with the
records of the meeting, either before or after the holding thereof, waive
such notice.
SECTION 5. Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation, the presence in person or by proxy at any
meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to
vote thereat, shall be requisite and shall constitute a quorum. If,
however, such majority shall not be present or represented at any meeting
of the stockholders regularly called, the holders of a majority of the
shares present or represented and entitled to vote thereat shall have power
to adjourn the meeting to another time, or to another time and place,
without notice other than announcement of adjournment at the meeting, and
there may be successive adjournment for like cause and in like manner until
the requisite amount of shares entitled to vote at such meeting shall be
represented. At such adjourned meeting at which the requisite amount of
shares entitled to vote thereat shall be present or represented, any
business may be transacted which might have been transacted at the meeting
as originally notified.
SECTION 6. Votes. Proxies. At each meeting of stockholders,
every stockholder shall have one vote for each share of capital stock
entitled to vote which is registered in his name on the books of the
Corporation on the date on which the transfer books were closed, if closed,
or on the date set by the Board of Directors for the determination of
stockholders entitled to vote at such meeting. At each such meeting every
stockholder shall be entitled to vote in person, or by proxy appointed by
an instrument in writing subscribed by such stockholder and bearing a date
not more than three years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in
force.
All elections of directors shall be held by ballot. If the
Chairman of the meeting shall so determine, a vote may be taken upon any
other matter by ballot, and shall be so taken upon the request of any
stockholder entitled to vote on such matter.
At elections of directors, the Chairman shall appoint two
inspectors of election, who shall first take and subscribe an oath or
affirmation faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of their ability and who
shall take charge of the polls and after the balloting shall make a
certificate of the result of the vote taken; but no director or candidate
for the office of director shall be appointed as such inspector.
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A nomination for the position of director shall be accepted,
and votes cast for a proposed nominee shall be counted, by the inspectors
of election only if the Secretary of the Company has received at least 30
days prior to the meeting a statement over the signature of the proposed
nominee that he consents to being a nominee and, if elected, intends to
serve as a director. Such statement shall also contain the number of
shares of stock of the Corporation held by the nominee, occupations and
business history for the previous five years, other directorships, names of
business entities in which the proposed nominee owns a 10 percent or more
equity interest, listing of any criminal convictions including federal or
state securities violations, and all other information required by the
federal proxy rules in effect at the time the proposed nominee submits said
statement.
SECTION 7. Organization. The Chairman of the Board, if there
be one, or in his absence the President, or in the absence of both the
Chairman of the Board and the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof.
The Secretary of the Corporation, if present, shall act as secretary of all
meetings of stockholders and, in his absence, the presiding officer may
appoint a secretary.
ARTICLE IV
Directors
SECTION 1. Number. The business and property of the
Corporation shall be conducted and managed by a Board of Directors
consisting of not less than three (3) nor more than eleven (11) directors,
none of whom need be a stockholder. The Board of Directors of the
Corporation shall initially be composed of five (5) directors, but the
Board may at any time by resolution increase or decrease the number of
directors to not more than eleven (11) or less than three (3), and the
vacancies resulting from any such increase shall be filled as provided in
Section 3 of this Article IV.
SECTION 2. Term of Office. Each director shall hold office
until the next annual meeting of stockholders and until his successor is
duly elected and qualified or until his earlier death or resignation,
subject to the right of the stockholders at any time to remove any director
or directors as provided in Section 4 of this Article.
SECTION 3. Vacancies. If any vacancy shall occur among the
directors, or if the number of directors shall at any time be increased,
the directors in office, although less than a quorum, by a majority vote
may fill the vacancies or newly created directorships, or any such
vacancies or newly created directorships may be filled by the stockholders
at any meeting.
SECTION 4. Removal by Stockholders. The holders of record of
the capital stock of the Corporation entitled to vote for the election of
directors may in their discretion at any meeting duly called for the
purpose, by a majority vote, remove any director or directors and elect a
new director or directors in place thereof.
SECTION 5. Meetings. Meetings of the Board of Directors shall
be held at such place within or without the State of Delaware, as may from
time to time be fixed by resolution of the Board or as may be specified in
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the notice or waiver of notice of any meeting. Meetings may be held at any
time upon the call of the Chairman, the President or the Secretary or any
two (2) or the directors by oral, telegraphic, or written notice, duly
served or sent or mailed to each director not less than two (2) days before
such meeting. Meetings may be held at any time and place without notice if
all the directors are present or if those not present shall, in writing or
by telegram, waive notice thereof. A regular meeting of the Board may be
held without notice immediately following the annual meeting of
stockholders at the place where such annual meeting is held or at such
other place, as determined by the directors. Regular meetings of the Board
may also be held without notice at such time and place as shall from time
to time be determined by resolution of the Board.
SECTION 6. Action Without a Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting, if all members
of the Board or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of
the Board or committee.
SECTION 7. Telephone Meetings. Subject to the provisions of
applicable law and these Bylaws regarding notice of meetings, members of
the Board of Directors or members of any committee designated by such Board
may, unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, participate in and hold a meeting of such Board of Directors
or committee by using conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this Section
shall constitute presence in person at such meeting, except when a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting was not lawfully
called or convened.
SECTION 8. Quorum. A majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of
the Board there shall be less than a quorum present, a majority of those
present may adjourn the meeting from time to time without notice other than
announcement of the adjournment at the meeting, and at such adjourned
meeting at which a quorum is present any business may be transacted which
might have been transacted at the meeting as originally noticed.
SECTION 9. Compensation. Directors, as such, shall not
receive any stated compensation for their services, but by resolution of
the Board of Directors, a fixed sum, and expenses of attendance, if any,
may be allowed for attendance at each regular or special meeting thereof.
By resolution of the Board of Directors, outside directors who do not
receive compensation from the Corporation in any other capacity may receive
compensation for their services. Nothing in this Section shall be
construed to preclude a director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE V
Executive Committee
SECTION 1. Executive Committee. The Board of Directors may
appoint an Executive Committee of three (3) or more members (with such
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alternates, if any, as may be deemed desirable), to serve during the
pleasure of the Board, to consist of such directors as the Board may from
time to time designate. The Chairman of the Executive Committee shall be
designated by the Board of Directors.
SECTION 2. Procedure. The Executive Committee, by a vote of a
majority of its members, shall fix its own times and places of meeting,
shall determine the number of its members constituting a quorum for the
transaction of business, and shall prescribe its own rules or procedure; no
change in which shall be made save by a majority vote to its members.
SECTION 3. Powers. During the intervals between the meetings
of the Board of Directors, the Executive Committee shall possess and may
exercise all the powers of the Board in the management and direction of the
business and affairs of the Corporation.
SECTION 4. Reports. The Executive Committee shall keep
regular minutes of its proceedings and all action by the Executive
Committee shall be reported promptly to the Board of Directors. Such
action shall be subject to review by the Board, provided that no rights of
third parties shall be affected by such review.
ARTICLE VI
Other Committee of the Board of Directors
The Board of Directors may designate one or more directors
(with such alternate, if any, as may be deemed desirable) to constitute
another committee or committees for any purpose, which shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may have power to authorize
the seal of the Corporation to be affixed to all papers which may require
it.
ARTICLE VII
Officers
SECTION 1. Officers. The Board of Directors shall elect, as
executive officers, a Chairman of the Board of Directors (who may also
occupy the office of President), a President, a Secretary and a Treasurer,
one or more Vice Presidents (in the case of each such Vice President, with
such descriptive title, if any, as the Board of Directors may deem
appropriate), and one or more Assistant Secretaries and Assistant
Treasurers. The Chairman of the Board of Directors or the President may
also be the Chief Executive Officer, as designated by the Board of
Directors.
SECTION 2. Vacancies. Any vacancy in any office may be
filled for the unexpired portion of the term by the Board of Directors, at
any regular or special meeting.
SECTION 3. President. The President may be a member of the
Board of Directors and the chief operating officer of the Corporation.
Subject to the directions of the Board of Directors, he shall have any
exercise direct charge of and general supervision over the business and
affairs of the Corporation and shall perform all duties incident to the
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office of a president of a corporation, and such other duties as from time
to time may be assigned to him by the Board of Directors.
SECTION 4. Chairman of the Board. The Chairman of the Board,
if elected, shall be a member of the Board of Directors and shall preside
at its meetings. He shall keep in close touch with the administration of
the affairs of the Corporation, shall advise and counsel with the
President, and, in his absence, with other executives of the Corporation,
and shall perform such other duties as may from time to time be assigned to
him by the Board of Directors.
SECTION 5. Vice Presidents. Each Vice President, if elected,
shall be and exercise such powers and shall perform such duties as from
time to time may be conferred upon or assigned to him by the Board of
Directors, or as may be delegated to him by the President.
SECTION 6. Secretary. The Secretary shall keep the minutes of
all meetings of the stockholders and of the Board of Directors in books
provided for the purpose; he shall see that all notices are duly given in
accordance with the provisions of law and these bylaws; he shall be
responsible for the custody and safekeeping of the records, and of the
corporate seal or seals of the Corporation; he shall see that the corporate
seal is affixed to all documents, the execution of which, on behalf of the
Corporation, under its seal, is duly authorized and when the seal is so
affixed he may attest the same; he may sign, with the President or Vice
President, certificates of stock of the Corporation; and in general, he
shall perform all duties incident to the office of a secretary of a
corporation, and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries
shall, in the absence or disability or at the direction of the Secretary,
perform the duties and exercise the powers of the Secretary and shall
perform such other duties as the Board of Directors shall prescribe.
SECTION 8. Treasurer. The Treasurer shall have charge of and
be responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of
the Corporation, all moneys or other valuable effects in such banks, trust
companies or other depositaries as shall, from time to time, be selected by
the Board of Directors; he may indorse for collection on behalf of the
Corporation, checks, notes and other obligations; he may sign receipts and
vouchers for payments made to the Corporation; singly or jointly with
another person as the Board of Directors may authorize, he may sign checks
of the Corporation and pay out and dispose of the proceeds under the
direction of the Board; he shall render to the President and to the Board
of Directors, whenever requested, an account of the financial condition of
the Corporation; he may sign, with the President or a Vice President,
certificates of stock of the Corporation; and in general, shall perform
all the duties incident to the office of a treasurer of a corporation, and
such other duties as from time to time may be assigned to him by the Board
of Directors.
SECTION 9. Assistant Treasurers. The Assistant Treasurers
shall, in the absence or disability or at the direction of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as the Board of Directors shall prescribe.
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SECTION 10. Subordinate Officers. The Board of Directors may
appoint such subordinate officers as it may deem desirable. Each such
officer shall hold office for such period, have such authority and perform
such duties as the Board of Directors may prescribe. The Board of
Directors may, from time to time, authorize any officer to appoint and
remove subordinate officers and to prescribe the powers and duties thereof.
SECTION 11. Compensation. The Board of Directors shall have
power to fix the compensation of all officers of the Corporation. It may
authorize any officer, upon whom the power of appointing subordinate
officers may have been conferred, to fix the compensation of such
subordinate officers.
SECTION 12. Removal. Any officer of the Corporation may be
removed, with or without cause, by a majority vote of the Board of
Directors at a meeting called for that purpose.
SECTION 13. Bonds. The Board of Directors may require any
officer of the Corporation to give a bond to the Corporation, conditional
upon the faithful performance of his duties, with one or more sureties and
in such amount as may be satisfactory to the Board of Directors.
ARTICLE VIII
Certificates of Stock
SECTION 1. Form and Execution of Certificates. The interest
of each stockholder of the Corporation shall be evidenced by a certificate
or certificates for shares of stock in such form as the Board of Directors
may from time to time prescribe. The certificates of stock of each class
and series shall be consecutively numbered and signed by the President or
Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer of the Corporation, and may be
countersigned and registered in such manner as the Board of Directors may
by resolution prescribe, and shall bear the corporate seal or a printed or
engraved facsimile thereof. Where any such certificate is signed by a
transfer agent or transfer clerk acting on behalf of the Corporation and by
a registrar, the signatures of any such President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be
facsimiles, engraved or printed. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall have been
used on, any such facsimile signature or signature shall have been used on,
any such certificate or certificates shall cease to be such officer or
officers, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be issued and delivered
by the Corporation as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures
shall have been used thereon had not ceased to be such officer or officers.
SECTION 2. Transfer of Shares. Subject to any applicable
restrictions contained in the Certificate of Incorporation, the shares of
the stock of the Corporation shall be transferred on the books of the
Corporation by the holder thereof in person or by his attorney lawfully
constituted, upon surrender for cancellation of certificates for the same
number of shares, with an assignment and power of transfer endorsed thereon
or attached thereto, duly executed, with such proof or guaranty of the
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authenticity of the signature as the Corporation or its agents may
reasonably require. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person whether
or not it shall have express or other notice thereof, save as expressly
provided by law or by the Certificate of Incorporation.
SECTION 3. Closing of Transfer Books. The stock transfer
books of the Corporation may, if deemed expedient by the Board of
Directors, be closed for such length of time not exceeding sixty (60) days
as the Board may determine, preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the date for
the allotment of rights or the date when any issuance, change, conversion
or exchange of capital stock shall go into effect, during which time no
transfer of stock on the books of the Corporation may be made.
SECTION 4. Dates of Record. If deemed expedient, the Board of
Directors may fix in advance a date for such length of time not exceeding
sixty (60) days as the Board may determine, preceding the date of any
meeting of stockholders, or the date for the payment of any dividend, or
the date for the allotment of rights or the date when any issuance, change,
conversion or exchange or capital stock shall go into effect, as a record
date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting or entitled to receive payment of any such
dividend or to any such allotment of rights, or to exercise the rights in
respect of any such issuance, change, conversion or exchange of capital
stock, as the case may be, and in such case only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any record date fixed as aforesaid;
provided, however, that no record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders shall be fixed on a date less than ten (10) days before the
date of such meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the
loss or destruction of any certificate of stock, a new certificate may be
issued upon the following conditions:
The owner of said certificate shall file with the Secretary of
the Corporation an affidavit giving the facts in relations to the
ownership, and in relation to the loss or destruction of said certificate,
stating its number and the number of shares represented thereby; such
affidavit to be in such form and contain such statements as shall satisfy
the President and Secretary that said certificate has been accidentially
destroyed or lost, and that a new certificate ought to be issued in lieu
thereof. Upon being so satisfied, the President and Secretary shall
require such owner to file with the Secretary a bond in such penal sum and
in such form as they may deem advisable, and with a surety or sureties
approved by them, to indemnify and save harmless the Corporation from any
claim, loss, damage or liability which may be occasioned by the issuance of
a new certificate in lieu thereof. Upon such bond being so filed a new
certificate for the same number of shares shall be issued to the owner of
the certificate so lost or destroyed; and the transfer agent and registrar
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of stock shall countersign and register such new certificate upon receipt
of a written order signed by the said President and Secretary, and
thereupon the Corporation will save harmless said transfer agent and
registrar in the premise. A Vice President may act hereunder in the stead
of the President, and an Assistant Secretary in the stead of the Secretary.
In case of the surrender of the original certificate, in lieu of which a
new certificate has been issued, or the surrender of such new certificate,
for cancellation, the bond or indemnity given as a condition of the issue
of such new certificate may be surrendered.
ARTICLE IX
Checks, Notes, Etc.
SECTION 1. Execution of Checks, Notes Etc. All checks and
drafts on the Corporation's bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations and other instruments
for the payment of money, shall be signed by such officer or officers,
agent or agents, as shall be thereunto authorized from time to time by the
Board of Directors.
SECTION 2. Execution of Contracts, Assignments, Etc. All
contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the President, the Chairman of the
Board, or any Vice President or by such other officer of officers, agent or
agents, as shall be thereunto authorized from time to time by the Board of
Directors; and, when necessary or appropriate, shall be attested by the
Secretary or any Assistant Secretary or the Treasurer or any Assistant
Treasurer.
SECTION 3. Execution of Proxies. The President or the
Chairman of the Board or, in their absence or disability, a Vice President,
may authorize from time to time the signature and issuance of proxies to
vote shares of stock of other companies standing in the name of the
Corporation. All such proxies shall be signed in the name of the
Corporation by the President, the Chairman of the Board or a Vice President
and by the Secretary or an Assistant Secretary.
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ARTICLE X
Waivers and Consents
Whenever any notice is required to be given by law, or under
the provisions of the Certificate of Incorporation, or of these bylaws,
such notice may be waived, in writing, signed by the person or persons
entitled to such notice, or by his attorney or attorneys thereunto
authorized, whether before or after the event or action to which such
notice relates.
Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action
by any provision of law or of the Certificate of Incorporation or of these
bylaws, the meeting and vote of stockholders may be dispensed with if all
the stockholders who would have been entitled to vote upon the action if
such meeting were held shall consent in writing to such action being taken.
Any action required or permitted to be taken at any meeting of
the Board of Directors or of any Committee of the Board of Directors may be
taken without a meeting, if prior to such action a written consent thereto
is signed by all members of the Board of Directors or of such Committee as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or of such Committee.
ARTICLE XI
Dividends
Except as otherwise provided by law or by the Certificate of
Incorporation, the Board of Directors may declare dividends out of the
surplus of the Corporation at such times and in such amounts as it may from
time to time designate.
Before crediting net profits to surplus in any year, there may
be set aside out of the net profits of the Corporation for that year such
sum or sums as the Board of Directors from time to time in its absolute
discretion may deem proper as a reserve fund or funds to meet contingencies
or for equalizing dividends or for repairing or maintaining any property of
the Corporation or for such other purpose as the Board of Directors shall
deem conducive to the interests of the Corporation.
ARTICLE XII
Indemnification and Insurance
SECTION 1. 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 proceeding, 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 Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action 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
Corporation to the fullest extent permitted by the laws of Delaware, as the
same exist or may hereafter be amended, against all costs, charges,
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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 Section 2 hereof, the Corporation
shall indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Article
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
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 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 of 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. The Corporation 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.
SECTION 2. Right of Claimant to Bring Suit. If a claim under
Section 1 of this Article is not paid in full by the Corporation within
thirty 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 and 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 failed to meet a standard of conduct
which makes it permissible under Delaware law for the Corporation to
indemnify the claimant for the amount claimed. 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 permissible in the
circumstances because he or she has met such standard or conduct, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholder) that the claimant has not
met such standard or conduct, shall be a defense to the action or create a
presumption that the claimant has failed to meet such standard of conduct.
SECTION 3. Non-Exclusivity or Rights. The right to
indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article
shall not be exclusive or 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.
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SECTION 4. Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under Delaware law.
SECTION 5. Expenses as a Witness. To the extent that any
director, officer, employee or agent of the Corporation is by reason of
such position, or a position with another entity at the request of the
Corporation, a witness in any action, suit or proceeding, he 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.
SECTION 6. Indemnity Agreements. The Corporation may enter
into agreements with any director, officer, employee or agent of the
Corporation providing for indemnification to the full extent permitted by
Delaware law.
ARTICLE XIII
Inspection of Books
The Board of Directors shall determine from time to time
whether, and if allowed, when and under what conditions and regulations,
the accounts and books of the Corporation (except such as may be
specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders and the stockholders' rights in this respect
are and shall be restricted and limited accordingly.
ARTICLE XIV
Fiscal Year
The fiscal year of the Corporation shall end on such dates as
the Board of Directors may by resolution specify and the Board of Directors
may by resolution change such date for future fiscal years at any time or
from time to time.
ARTICLE XV
Amendments
These Bylaws may be altered, amended or repealed and new Bylaws
adopted by the stockholders or by the Board of Directors by a majority vote
at any meeting called for that purpose.
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