BY-LAWS
OF
UNIT CORPORATION
a Delaware Corporation
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting. The annual meeting of stockholders shall be
held at such date and at such hour as may be designated by the Board of
Directors. If the date is a legal holiday, then the meeting shall be held on the
next succeeding business day. The purpose of the meeting shall be to elect
directors. Any business may be transacted at the annual meeting, except as
otherwise provided by law or by these By-laws.
Section 2. Special Meeting. A special meeting of stockholders may be called
at any time by the Board of Directors or by the President. Only such business
shall be transacted at a special meeting as may be stated or indicated in the
Notice of such meeting.
Section 3. Place. The annual meeting of stockholders may be held by remote
communication or at any place within or without the State of Delaware designated
by the Board of Directors. Special meetings of stockholders may be held by
remote communication or at any place within or without the State of Delaware
designated by the Chairman of the Board, if he shall call the meeting, or by the
Board of Directors, if they shall call the meeting. Any meeting may be held by
remote communication or at any place within or without the State of Delaware
designated in a waiver of notice of such meeting signed by all stockholders.
Meeting of Stockholders shall be held at the principal office of the corporation
unless another place is designated for meetings in the manner provided herein.
Section 4. Notice. Written or printed notice stating the place, day and
hour of each meeting of stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) days nor more than sixty (60) days before the date of the meeting,
either personally, by mail or by other lawful means to each stockholder of
record entitled to vote
at such meeting.
Section 5. Quorum. The holders of at least a majority of the outstanding
stock entitled to vote thereat and present in person or by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business, except as otherwise provided by the General Corporation Law of the
State of Delaware or by the Certificate of Incorporation of the corporation. At
all meetings of stockholders for the election of directors a plurality of the
votes cast shall be sufficient to elect. All other elections and questions
shall, unless otherwise provided by the Certificate of Incorporation, these By-
Laws, the rules or regulations of any stock exchange applicable to
the corporation, or applicable law or pursuant to any regulation applicable to
the corporation or its securities,
be decided by the affirmative vote of the holders of a majority in voting power
of the shares of stock of the corporation which are present in person or by
proxy and entitled to vote thereon.
Section 6. Proxies. At all meetings of stockholders, a stockholder may vote
either in person or by proxy executed in writing by the stockholder or by his
duly authorized attorney-in-fact. Such proxies shall be filed with the
Secretary of the corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable, and in no event shall it remain irrevocable
for a period of more than eleven (11) months.
Section 7. Voting of Shares. Each outstanding share of common stock shall
be entitled to one vote upon each matter submitted to a vote at a meeting of the
stockholders.
Section 8. Officers. The Chairman of the Board shall preside at and the
Secretary shall keep the records of each meeting of stockholders, and in the
absence of either such officer, some person appointed at the meeting shall
perform his duties.
Section 9. List of Stockholders. A complete list of stockholders entitled
to vote at each stockholders' meeting, arranged in alphabetical order, with the
address of and showing the number of shares held by each, shall be prepared
by the Secretary and filed at the registered office of the corporation, and
shall be subject to inspection by any stockholder for any purpose germane to the
meetings as required by applicable law.
Section 10. Notice of Stockholder Business and Nominations.
(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 only (i) pursuant to the corporation's notice
of meeting (or any supplement thereto), (ii) by or at the direction of the
Board of Directors or (iii) by any stockholder of the corporation who was a
stockholder of record of the corporation at the time the notice provided
for in this Section 10 is delivered to the Secretary of the corporation,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 10.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a)(1) of this Section 10, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation and any such
proposed business other than the nominations of persons for election to the
Board of Directors must constitute a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the corporation not later than the close
of business on the ninetieth day nor earlier than the close of business on
the one hundred twentieth day prior to the first anniversary of the
preceding year's annual meeting (provided, however, that in the event that
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the date of the annual meeting is more than thirty days before or more than
seventy days after such anniversary date, notice by the stockholder must be
so delivered not earlier than the close of business on the one hundred
twentieth day prior to such annual meeting and not later than the
close of business on the later of the ninetieth day prior to such annual
meeting or the tenth day following the day on which public announcement of
the date of such meeting is first made by the corporation). In no event
shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period) for
the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth: (A) as to each person whom the stockholder proposes
to nominate for election as a director (i) all information relating to
such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required,
in each case pursuant to and in accordance with Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and (ii)
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 that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a
proposal to amend the By-laws of the corporation, the language of the
proposed amendment), 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 (i) the name and
address of such stockholder, as they appear on the corporation's books, and
of such beneficial owner, (ii) the class and number of shares of capital
stock of the corporation which are owned beneficially and of record
by such stockholder and such beneficial owner, (iii) a representation that
the stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (iv) a representation
whether the stockholder or the beneficial owner, if any, intends or
is part of a group which intends (A) to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the corporation's
outstanding capital stock required to approve or adopt the proposal or
elect the nominee and/or (B) otherwise to solicit proxies from stockholders
in support of such proposal or nomination. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder
has notified the corporation of his or her intention to present a proposal
at an annual meeting in compliance with Rule 14a-8 (or any successor
thereof) promulgated under the Exchange Act and such stockholder's proposal
has been included in a proxy statement that has been prepared by the
corporation to solicit proxies for such annual meeting. The corporation may
require any proposed nominee to furnish such other information as
it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
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(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of
this Section 10 to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the corporation at an annual
meeting is increased and there is no public announcement by the corporation
naming the nominees for the additional directorships at least one hundred
days prior to the first anniversary of the preceding year's annual meeting,
a stockholder's notice required by this Section 10 shall also be considered
timely, but only with respect to nominees for the additional directorships,
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.
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 (1) by or at the direction
of the Board of Directors or (2) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
stockholder of the corporation who is a stockholder of record at the time
the notice provided for in this Section 10 is delivered to the Secretary of
the corporation, who is entitled to vote at the meeting and upon such
election and who complies with the notice procedures set forth in this
Section 10. In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder entitled to vote in such election of
directors may nominate a person or persons (as the case may be) for
election to such position(s) as specified in the corporation's notice of
meeting, if the stockholder's notice required by paragraph (a)(2) of this
Section 10 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the
one hundred twentieth day prior to such special meeting and not later than
the close of business on the later of the ninetieth 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 or postponement
of a special meeting commence a new time period (or extend any time period)
for the giving of a stockholder's notice as described above.
(c) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 10 shall be eligible to be
elected at an annual or special meeting of stockholders of the corporation
to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 10. Except as
otherwise provided by law, the chairman of the meeting shall have the power
and duty (A) to determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as
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the case may be, in accordance with the procedures set forth in this
Section 10 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made solicited (or is part of
a group which solicited) or did not so solicit, as the case may be, proxies
in support of such stockholder's nominee or proposal in compliance with
such stockholder's representation as required by clause (a)(2)(C)(iv) of
this Section 10) and (B) if any proposed nomination or business was not
made or proposed in compliance with this Section 10, to declare that
such nomination shall be disregarded or that such proposed business shall
not be transacted. Notwithstanding the foregoing provisions of this Section
10, if the stockholder (or a qualified representative of the stockholder)
does not appear at the annual or special meeting of stockholders of
the corporation to present a nomination or business, such nomination shall
be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received
by the corporation.
(2) For purposes of this Section 10, "public announcement" shall include
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 Section 10, 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 Section 10. Nothing in this Section 10 shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (B) of the holders of any series of Preferred
Stock to elect directors pursuant to any applicable provisions of the
certificate of incorporation.
Section 11. Conduct of Meeting. Meetings of stockholders shall be
presided over by the Chairman of the Board or by another chair designated by the
Board of Directors. The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be determined by the chair of the meeting and announced at the meeting. The
Board of Directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chair of any meeting of stockholders shall have the exclusive
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chair, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board or prescribed by the chair of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of record of the corporation,
their duly authorized and constituted proxies or such other persons as the chair
of the meeting shall determine; (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof, and (v) limitations on the time
allotted to
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questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chair of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 12. Fixing Date for Determination of Stockholders of Record. In
order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty
(60) nor less than ten (10) days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten (10) days from
the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other action, shall not be more
than sixty (60) days prior to such other action. If no record date is fixed: (1)
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall be determined in
accordance with Section 13 of this Article I; and (3) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 13. Record Date for Action by Written Consent. In order that
the corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which date
shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by
written consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date (unless a record date has
previously been fixed by the Board of Directors pursuant to the first sentence
of this Section13). If no record date has been fixed by the Board of Directors
pursuant to the first sentence of this Section 13 or otherwise within ten (10)
days of the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing
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without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or to any officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors
pursuant to the first sentence of this Section 13, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting if prior action by the Board of Directors is required by law
shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 14. Inspectors of Written Consent. In the event of the delivery,
in the manner provided by Section 13 of this Article I, to the corporation of
written consent or consents to take corporate action and/or any related
revocation or revocations, the corporation shall engage independent inspectors
of elections for the purpose of performing promptly a ministerial review of the
validity of the consents and revocations. For the purpose of permitting the
inspectors to perform such review, no action by written consent without a
meeting shall be effective until such date as the independent inspectors certify
to the corporation that the consents delivered to the corporation in accordance
with Section 13 of this Article I represent at least the minimum number of votes
that would be necessary to take the corporate action. Nothing contained in this
Section 14 shall in any way be construed to suggest or imply that the Board
of Directors or any stockholder shall not be entitled to contest the validity of
any consent or revocation thereof, whether before or after such certification by
the independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
Section 15. Effectiveness of Written Consent. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the earliest dated written consent
received in accordance with Section 13 of this Article I, a written consent or
consents signed by a sufficient number of holders to take such action are
delivered to the corporation in the manner prescribed in Section 13 of this
Article I.
Section 16. Adjournment of Meeting. Any meeting of stockholders, annual
or special, may be adjourned by the chair of the meeting from time to time to
reconvene at the same or some other time, date and place. Notice need not be
given of any such adjourned meeting if the time, date and place thereof are
announced at the meeting at which the adjournment is taken. If after the
adjournment a new record date is fixed for the adjourned meeting or if the
adjournment is for more than thirty days, notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the adjourned
meeting.
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Section 17. Postponement and Cancellation of Meeting. Any previously
scheduled annual or special meeting of the stockholders may be postponed, and
any previously scheduled annual or special meeting of the stockholders called by
the Board of Directors may be canceled, by resolution of the Board upon public
notice given prior to the time previously scheduled for such meeting of
stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office. The business and affairs of the
corporation shall be managed and controlled by or under direction of Board of
Directors, and subject to the restrictions imposed by Law, by the Certificate of
Incorporation, or by these By-Laws, they may exercise all powers of the
corporation.
Commencing at the Annual Meeting of Stockholders held in 1987, the Board of
Directors shall be divided into three classes, Class I, Class II and Class III,
with respect to their terms of office. All classes shall be as nearly equal
in number as possible. Subject to such limitations, when the number of directors
is changed, any newly created directorships or any decrease in directorships
shall be apportioned among the classes by action of the Board of
Directors.
The terms of office of the directors initially classified shall be as
follows: that of Class I shall expire at the annual meeting of Stockholders to
be held in 1988; that of Class II shall expire at the annual meeting of
Stockholders to be held in 1989; that of Class III shall expire at the annual
meeting of Stockholders to be held in 1990. At each annual meeting of
Stockholders after such initial classification, directors to replace those whose
terms expire at such annual meeting shall be elected to hold office until the
third succeeding Annual Meeting.
Each director shall hold office for the term of which he is elected and
until his successor shall have been elected and qualified.
Any vacancy or newly-created directorship occurring in the Board of
Directors may only be filled by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board of Directors. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 2. Meeting of Directors. The directors may hold their meetings
and may have an office and keep the books of the corporation, except as
otherwise provided by statute, in such place or places in the State of Delaware,
or outside the State of Delaware as the Board of Directors may from
time to time determine.
Section 3. First Meeting. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the stockholders, and no notice of such meeting shall be
necessary.
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Section 4. Election of Officers. At the first meeting of the Board of
Directors in each year at which a quorum shall be present, held next after the
annual meeting of stockholders, the Board of Directors shall proceed to the
election of the officers of the corporation.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place within or without the State of
Delaware as shall be designated, from time to time, by resolution of the Board
of Directors. Notice of such regular meetings shall not be
required.
Such meetings may be conducted by use of long distance conference calls.
Section 6. Special Meetings. Special meetings of the Board of
Directors shall be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board or by a majority of the
directors at the time being in office.
Section 7. Notice. The Secretary shall give notice of each special
meeting in person, or by mail, telegraph or other lawful means at least five (5)
days before the meeting, to each director. The attendance of a director at
any meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the grounds
that 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 the Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
At any such meeting at which every director shall be present, even though
without any notice, any business may be transacted.
Section 8. Quorum. A majority of the authorized number of directors
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors, there be less than a quorum present, a majority
of those present or any director solely present may adjourn the meeting from
time to time without further notice. The act of a majority of the directors
present at a meeting at which a quorum is in attendance shall be the act of the
Board of Directors, unless the act of a greater number is required by the
Certificate of Incorporation or by these By-laws. However, if the Board of
Directors consists of only three members, all three members of the Board shall
constitute a quorum.
Section 9. Order of Business. At meetings of the Board of Directors,
business shall be transacted in such order as from time to time the Board may
determine.
At all meetings of the Board of Directors, the Chairman of the Board shall
preside as Chairman, and in the absence of the Chairman of the Board, a Chairman
shall be chosen by the Board from among the directors present.
The Secretary of the Company shall act as Secretary of all meetings of the
Board of Directors, but in the absence of the Secretary, the presiding officer
may appoint any
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person to act as Secretary of the meeting. If the Secretary is not present at
the meeting, the Chairman of the Board may appoint a member of the Board to act
as Secretary of that particular meeting.
Section 10. Compensation. Directors as such shall not receive any
stated salary for their service, but by resolution of the Board a fixed sum and
expense of attendance, if any, may be allowed for attendance at such regular or
special meetings of the Board; provided that nothing contained herein shall be
construed to preclude any director from serving the corporation in any other
capacity or receiving compensation therefor.
Section 11. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right of dissent shall not apply to a director
who voted in favor of such action.
ARTICLE III
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the
corporation shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary, a Treasurer, and such other officers as the Board
of Directors may from time to time elect or appoint. Each officer shall hold
office until his successor shall have been duly elected and qualified or until
his death or until he shall resign or shall have been removed in the manner
hereinafter provided. One person may hold more than one office, except that the
President shall not hold the office of Secretary. None of the officers need be a
director.
Section 2. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights.
Section 3. Vacancies. A vacancy in the office of any officer may be
filled by vote of a majority of the directors for the unexpired portion of the
term.
Section 4. Powers and Duties of the Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the stockholders and of
the Board of Directors. During the absence or disability of the President, the
Chairman of the Board of Directors shall exercise all the powers and discharge
all the duties of the President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such other powers as may from
time to time be assigned by these By-laws or by the Board of Directors.
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Section 5. Powers and Duties of the President. The President shall,
subject to the control of the Board of Directors have general supervision of the
business of the corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The President, subject to a
contrary designation by the Board of Directors, shall be the Chief Executive
Officer of the corporation The President shall execute all bonds, mortgages,
contracts and other instruments of the corporation requiring a seal, under the
seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except that the other officers of the
corporation may sign and execute documents when so authorized by these By-laws,
the Board of Directors or the President. In the absence or disability of the
Chairman of the Board of Directors, the President shall preside at all meetings
of the stockholders and the Board of Directors. The President shall also perform
such other duties and may exercise such other powers as may from time
to time be assigned to such officer by these By-laws or by the Board of
Directors
Section 6. Vice Presidents. Each Vice President shall have such powers
and duties as may be assigned to him by the Board of Directors and shall
exercise the powers of the President during that officer's absence or inability
to act. Any action taken by a Vice President in the performance of the duties
of the President shall be conclusive evidence of the absence or inability to act
of the President at the time such action was taken.
Section 7. Treasurer. The Treasurer shall have custody of all the
funds and securities of the corporation that come into his hands. When necessary
or proper, he may endorse, on behalf of the corporation, for collection, checks,
notes and other obligations and shall deposit the same to the credit of the
corporation in such bank or banks or depositories as shall be designated in the
manner prescribed by the Board of Directors; he may sign all receipts and
vouchers for payments made to the corporation, either alone or jointly
with such other officer as is designated by the Board of Directors. Whenever
required by the Board of Directors, he shall render a statement of his cash
account; he shall enter or cause to be entered regularly in the books of the
corporation to be kept by him for that purpose, full and accurate accounts of
all moneys received and paid out on account of the corporation; he shall perform
all acts incident to the position of Treasurer subject to the control
of the Board of Directors; and he shall, if required by the Board of Directors,
give such bond for the faithful discharge of his duties in such form as the
Board of Directors may require.
Section 8. Assistant Treasurer. Each Assistant Treasurer, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as may be assigned to him by the Board of
Directors. The Assistant Treasurers shall exercise the powers of the Treasurer
during that officer's absence or inability to act.
Section 9. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders, in books provided for that purpose; he shall
attend to the giving and serving of all notices; he may sign with the President
in the name of the corporation, all contracts of the corporation and affix the
seal of the corporation thereto; he may sign with the Chairman of the Board or
the President all certificates for shares of the capital stock of
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the corporation; he shall have charge of the certificate books, transfer books,
and stock ledgers, and such other books and papers as the Board of Directors may
direct, all of which shall at all reasonable times be open to the inspection of
any director upon application at the office of the corporation during business
hours, and he shall in general perform all duties incident to the office of
Secretary subject to the control of the Board of Directors.
Section 10. Assistant Secretaries. Each Assistant Secretary, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as may be assigned to him by the Board of
Directors or the Secretary. The Assistant Secretary shall exercise the powers of
the Secretary during that officer's absence or inability to act.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification.
(a) The corporation shall indemnify any person who has or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he, or a person for whom he is the legal
representative, is or was the director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he, or a person for whom he is
the legal representative, is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good
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faith and in a manner he reasonable believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b), or a
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections (a) and
(b). Such determination shall be made, with respect to a person who is a
director, officer, employee or agent at the time of such determination, (1)
by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum or (2) by a committee of
such directors designated by majority vote of such directors, even though
less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or
(4) by the stockholders.
(e) Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this
Section. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
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(g) The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Section.
(h) For purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and person who acted in
good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(k) Notwithstanding the foregoing, the rights of indemnification
shall be deemed to extend to the fullest limits allowed by the General
Corporation Law of the State of Delaware, in its current form or as
hereinafter amended, or any successor law.
Section 2. General. The foregoing rights shall not be
exclusive of other rights to which any director or officer may otherwise be
entitled, and in the event of his death,
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shall extend to his legal representatives. The foregoing rights shall be
available whether or not the director or officer continues to be a director or
officer at the time of incurring or becoming subject to such loss, expenses,
costs and counsel fees, and whether or not the claim asserted against him is a
matter which antedates the adoption of this Article IV.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Shares. The certificates for shares of the
capital stock of the corporation shall be in such form as shall be approved by
the Board of Directors. The certificates shall be signed by the Chairman of the
Board, President or a Vice President, and also by the Secretary or an Assistant
Secretary and may be sealed by the seal of this corporation or a facsimile
thereof. Where any such certificate is countersigned by a transfer agent, or
registered by a registrar, either of which is other than the corporation itself
or an employee of the corporation, the signatures of such Chairman of the Board,
President or Vice President and Secretary or Assistant Secretary, may be
facsimiles. They shall be consecutively numbered and shall be entered in the
books of the corporation as they are issued and shall exhibit the holder's name
and the number of shares.
Section 2. Transfer of Shares. The shares of stock of the corporation
shall be transferable only on the books of the corporation by the holders
thereof in person or by their duly authorized attorneys or legal representatives
upon surrender and cancellation of certificates for a like number
of shares.
Section 3. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of the capital stock of the corporation.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the corporation required
by the General Corporation Law of the State of Delaware shall be maintained in
the State of Delaware, but the Board of Directors may, from time to time,
designate the principal office and place of business of the corporation, which
may be out of the State of Delaware.
Section 2. Fiscal Year. The fiscal year of the corporation shall be
such as the Board of Directors shall, by resolution, establish.
Section 3. Seal. The seal of the corporation shall be such as from
time to time may be approved by the Board of Directors.
Section 4. Notice and Waiver of Notice. Whenever any notice whatever
is required to be given under the provisions of these By-laws, said notice shall
be deemed to be sufficient if given by depositing the same in a post office
in a sealed postpaid wrapper
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addressed to the persons entitled thereto at his post office address, as it
appears on the books of the corporation, and such notice shall be deemed to have
been given on the day of such mailing. A waiver of notice in writing or by
electronic transmission, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
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.
Section 5. Resignations. Any director or officer may resign at any
time. Such resignations shall be made in writing or by electronic transmission
and shall take effect at the time specified therein, or, if no time be
specified, at the time of its receipt by the President or Secretary.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
Section 6. Interested Directors: Quorum:
(a) No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose, if:
(1) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the board or committee in good
faith authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are know to the
shareholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified by the Board of
Directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee that authorizes the contract or transaction.
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ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended, or repealed by the affirmative vote
of the holders of a majority of the outstanding stock at any annual meeting, or
at any special meeting if notice of the proposed amendment be contained in
the notice of said special meeting, or by the affirmative vote of a majority of
the full Board of Directors at any regular or special meeting, provided notice
of said proposed amendment be contained in the notice of the meeting.
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