EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
PIONEER NATURAL RESOURCES USA, INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of stockholders of Pioneer
Natural Resources USA, Inc. (the "Corporation") shall be held at such place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors.
SECTION 2. Annual Meeting. An annual meeting of stockholders shall be held
for the election of directors on such date in each year and at such time as
shall be designated by the Board of Directors. At such annual meeting the
stockholders shall elect by a plurality vote a Board of Directors, and transact
such other business as may properly be brought before the meeting. A failure to
hold the annual meeting at the designated time or to elect a sufficient number
of directors to conduct the business of the Corporation shall not affect
otherwise valid corporate acts or work a forfeiture or dissolution of the
Corporation, except as may be otherwise specifically provided by law. If the
annual meeting for election of directors is not held on the date designated
therefor, the directors shall cause the meeting to be held as soon thereafter as
convenient. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
SECTION 3. Special Meeting. Unless otherwise prescribed by law or by the
Certificate of Incorporation, a special meeting of the stockholders, for any
purpose or purposes, may be called by either (i) the Chairman, if there be one,
or (ii) the President, (iii) any Vice President, if there be one, (iv) the
Secretary, or (v) any Assistant Secretary, if there be one, and shall be called
by any such officer at the request in writing of a majority of the Board of
Directors. Any such request shall state the purpose or purposes of the proposed
meeting. Written notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
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SECTION 4. Quorum and Adjournment. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or
represented by proxy, of the holders of a majority of the voting power of the
shares of capital stock of the Corporation entitled to vote on any matter shall
constitute a quorum for the purpose of considering such matter at a meeting of
the stockholders. If a meeting of stockholders cannot be organized because a
quorum has not attended, 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, without notice other than announcement at the meeting at which the
adjournment is taken of the time and place of the adjourned meeting, until a
quorum shall be present or represented. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting at which a quorum shall be present or represented, the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
SECTION 5. Conduct of Meetings of Stockholders. At each meeting of the
stockholders, the President, or, in his absence, a chairman chosen by a majority
vote of the stockholders present in person or represented by proxy and entitled
to vote thereat, shall preside and act as chairman of the meeting. The Secretary
or, in his absence, an Assistant Secretary, or, in the absence of the Secretary
and all Assistant Secretaries, a person whom the chairman of such meeting shall
appoint, shall act as secretary of such meeting and keep the minutes thereof.
The Board of Directors may adopt such rules and regulations as it determines are
reasonably necessary or appropriate in connection with the organization and
conduct of any meeting of the stockholders.
SECTION 6. Vote Required. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws and in all matters other than the
election of directors, the affirmative vote of the holders of a majority of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders. Directors of
the Corporation shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors.
SECTION 7. Proxies. 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 him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the
Corporation generally.
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SECTION 8. Stockholder List. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept open at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. In lieu of making and producing such list, the Corporation may
make the information therein available by any other means permitted by law.
SECTION 9. Stock Ledger. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by Section 8 of this Article or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
SECTION 10. Action by Written Consent. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of stockholders of the Corporation, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
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 days of the earliest
dated consent delivered in the manner required by this Section 10 to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
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ARTICLE II
DIRECTORS
SECTION 1. Board of Directors. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The number
of directors that shall constitute the whole Board of Directors of the
Corporation shall be fixed by the affirmative vote of a majority of the members
at any time constituting the Board of Directors, and such number may be
increased or decreased from time to time; provided, however, that no such
decrease shall have the effect of shortening the term of any incumbent director.
Except as provided in Section 2 of this Article, directors shall be elected by a
plurality of the votes cast at the annual meetings of stockholders, and each
director so elected shall hold office until the next annual meeting of
stockholders and until his successor is duly elected and qualified or until the
earliest of his death, resignation or removal. Directors need not be
stockholders.
SECTION 2. Vacancies and Newly Created Directorships. Vacancies and newly
created directorships resulting from any increase in the authorized number of
directors elected by all of the stockholders having the right to vote as a
single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. Whenever the
holders of any class or classes of stock or series thereof are entitled to elect
one or more directors by the Certificate of Incorporation, vacancies and newly
created directorships of such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected. If at any time, by
reason of death, resignation, removal or other cause, there are no directors in
office, then an election of directors may be held in the manner provided by the
General Corporation Law of the State of Delaware (the "General Corporation
Law"). When one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
Section 2 in the filling of other vacancies.
SECTION 3. Removal. Any director or the entire Board of Directors of the
Corporation may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at the election of directors; provided,
however, that whenever the holders of any class or series of capital stock of
the Corporation are entitled to elect one or more directors by the provisions of
the Certificate of Incorporation, the provisions of this Section 3 shall apply,
in respect of the removal without cause of a director or directors so elected,
to the vote of the holders of the outstanding shares of such class or series of
capital stock and not to the vote of the outstanding shares as a whole.
SECTION 4. Resignation. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the President or the
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Secretary. Such resignation shall take effect at the date of receipt of such
notice by the President or the Secretary, or at any later time specified
therein. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 5. Compensation of Directors. The directors shall receive such
compensation for their services as the Board of Directors may from time to time
determine. No director shall be prevented from receiving compensation for his
services as a director by reason of the fact that he is also an officer of the
Corporation. All directors shall be reimbursed for their reasonable expenses of
attendance at each regular or special meeting of the Board of Directors. Members
of any committee of directors may be allowed like compensation and reimbursement
for expenses for serving as members of any such committee and for attending
committee meetings.
SECTION 6. Place of Meetings. The Board of Directors of the Corporation may
hold its meetings, both regular and special, either within or without the State
of Delaware.
SECTION 7. Regular Meetings. Promptly after each annual election of
directors, the Board of Directors shall meet for the purpose of the election of
officers and the transaction of other business, at the place where such annual
election is held. The Board of Directors may also hold other regular meetings at
such time or times and at such place or places as shall be designated by the
Board of Directors from time to time. Notice of regular meetings of the Board of
Directors need not be given.
SECTION 8. Special Meetings. Special meetings of the Board of Directors may
be called by the President or by a majority of the Board of Directors. Notice
shall be sent to the last known address of each director, by mail, telegram,
cable or telex, at least two days before the meeting, or oral notice may be
substituted for such written notice if received not later than the day preceding
such meeting. Special meetings shall be called by the President or by the
Secretary in like manner and on like notice at the written request of a majority
of directors, and the place and time of such special meeting shall be as
designated in the notice of such meetings.
SECTION 9. Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, at all meetings of the Board of Directors a
majority of the total number of directors in office shall constitute a quorum
for the transaction of business and the vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. If a quorum shall not be present at any 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 10. Conduct of Meetings of Board of Directors. At each meeting of
the Board of Directors the President or, in his absence, a director chosen by a
majority of the directors present, shall act as chairman of the meeting. The
Secretary or, in his absence, a person whom the chairman of such meeting shall
appoint, shall act as secretary of such meeting and keep the minutes thereof.
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SECTION 11. Meetings by Telephone Conference. Members of the Board of
Directors of the Corporation may participate in a meeting of such Board of
Directors or committee by means of 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 11 shall constitute presence in person at such meeting.
SECTION 12. Action by Written Consent. 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 of Directors or
committee, as the case may be, consent thereto in writing setting forth the
action so taken, and the writing or writings are filed with the minutes of pro
ceedings of the Board of Directors or committee.
SECTION 13. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. 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 he or they 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, unless otherwise provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Notwithstanding the foregoing, no committee shall have the power
or authority to take any of the following actions:
(a) amend the Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the
issuance of shares of any series of capital stock of the Corporation
adopted by the Board of Directors as permitted by the General Corporation
Law, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation or fix the
number of shares of any series of stock or authorize the increase or
decrease of the shares of any series);
(b) adopt an agreement of merger or consolidation under the General Corporation
Law;
(c) recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets;
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(d) recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; or
(e) amend the Bylaws of the Corporation.
In addition, unless the resolution of the Board of Directors designating
the committee expressly so provides, no such committee shall have the power or
authority to take any of the following actions:
(i) declare a dividend;
(ii) authorize the issuance of stock; or
(iii) adopt a certificate of ownership and merger pursuant to the General
Corporation Law.
Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
SECTION 14. Interested Directors. 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 of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
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 of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) 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. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
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ARTICLE III
OFFICERS
SECTION 1. General. The officers of the Corporation shall consist of a
President, a Secretary and such other officers, including assistant officers, as
may be deemed necessary by the Board of Directors. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these Bylaws
otherwise provide. The Board of Directors at its first meeting held after each
annual meeting of stockholders shall elect the officers of the Corporation who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors. The Board of Directors may delegate to the President, any Vice
President, the Secretary and the Treasurer the power to appoint or remove any
subordinate officers, agents or employees. Each officer of the Corporation shall
hold his office until his successor is elected and qualified or until the
earliest of his death, resignation or removal.
SECTION 2. Removal. Any officer may be removed, either with or without
cause, by the affirmative vote of a majority of the directors then in office at
a meeting called for that purpose, or, except in the case of any officer elected
by the Board of Directors, by any officer upon whom the powers of removal may be
conferred by the Board of Directors.
SECTION 3. Resignation. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Corporation. Such
resignation shall take effect at the date of receipt of such notice by the
Corporation, or at any later time specified therein. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 4. Vacancies. A vacancy in any office resulting from death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for regular
election or appointment to such office.
SECTION 5. Officers' Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors, and no officer shall be prevented
from receiving a salary by reason of the fact that he is also a director of the
Corporation.
SECTION 6. Chairman of the Board. The Chairman of the Board, if there is
one, shall, if present, preside at all meetings of the shareholders and of the
Board of Directors. If so designated by the Board of Directors, the Chairman of
the Board shall be the chief executive officer of the Corporation. The Chairman
of the Board may sign, with the Secretary or any other proper officer of the
Corporation thereunto authorized by the Board of Directors, certificates for
shares of the Corporation, any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed and executed;
and in general shall perform all duties incident to the office of Chairman of
the Board and such other duties as may be prescribed by the Board of Directors
from time to time.
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SECTION 7. President. The President shall be the chief operating officer of
the Corporation and shall in general supervise and control all of the business
and affairs of the Corporation. He shall preside at all meetings of the
stockholders and of the Board of Directors and shall perform such other duties
as may be assigned to him from time to time by the Board of Directors. He may
execute certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments that the Board of Directors has authorized to be
executed, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Corporation or shall be required by law to be otherwise signed and
executed. In addition, the President shall perform, under the direction and
subject to the control of the Board of Directors, all such other duties as are
incident to the office of President and as may be prescribed by the Board of
Directors from time to time.
SECTION 8. Vice President. Each Vice President, if any, shall perform,
under the direction and subject to the control of the Board of Directors and the
President, the usual and customary duties incident to such office (but not any
unusual or extraordinary duties or powers conferred by the Board of Directors
upon the President) and such other duties as may be assigned to him from time to
time by the Board of Directors or the President.
SECTION 9. Secretary and Assistant Secretary. It shall be the duty of the
Secretary to attend all meetings of the stockholders and Board of Directors and
record correctly the proceedings held at such meetings in a book suitable for
that purpose. It shall also be the duty of the Secretary to attest with his
signature all stock certificates issued by the Corporation, to keep a stock
ledger in which shall be correctly recorded all transactions pertaining to the
capital stock of the Corporation and to attest with his signature all deeds,
conveyances or other instruments requiring the seal of the Corporation. The
Secretary shall have full power and authority on behalf of the Corporation to
execute any stockholders' consents and to attend and act and to vote in person
or by proxy at any meetings of the stockholders of any corporation in which the
Corporation may own stock, and at any such meetings shall possess and may
exercise any and all the rights and powers incident to the ownership of such
stock that as the owner thereof the Corporation might have possessed and
exercised if present. The Secretary shall also perform, under the direction and
subject to the control of the Board of Directors and the President, the usual
and customary duties incident to such office and such other duties as may be
assigned to him from time to time. The duties of the Secretary may also be
performed by any Assistant Secretary.
SECTION 10. Treasurer and Assistant Treasurer. The Treasurer shall have the
care and custody of all the funds and securities of the Corporation that may
come into his hands as Treasurer. He may endorse checks, drafts and other
instruments for the payment of money for deposit or collection when necessary or
proper and may deposit the same to the credit of the Corporation in such bank or
banks or depositary as the Board of Directors may designate. In addition, he may
endorse all commercial documents requiring endorsements for or on behalf of the
Corporation and may sign all receipts and vouchers for the payments made to the
Corporation. He shall enter regularly in the books to be kept by him for that
purpose a full and accurate account of all monies received and paid by him on
account of the Corporation and shall render an account of his transactions to
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the Board of Directors as often as the Board of Directors shall require. The
Treasurer shall have full power and authority on behalf of the Corporation to
execute any stock holders' consents and to attend and act and to vote in person
or by proxy at any meetings of stockholders of any corporation in which the
Corporation may own stock, and at any such meetings shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock that as the owner thereof the Corporation might have possessed and
exercised if present. He shall when requested, pursuant to a vote of the Board
of Directors, give a bond to the Corporation for the faithful performance of his
duties, the expense of which bond shall be borne by the Corporation. The
Treasurer shall also perform, under the direction and subject to the control of
the Board of Directors and the President, the usual and customary duties
incident to such office and such other duties as may be assigned to him from
time to time. The duties of the Treasurer may also be performed by any Assistant
Treasurer.
SECTION 11. Delegation of Authority. In the case of any absence of any
officer of the Corporation or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may delegate some or all of the
powers or duties of such officer to any other officer or to any director,
employee, stockholder or agent for whatever period of time the Board of
Directors determines is necessary or appropriate.
ARTICLE IV
STOCK AND STOCK CERTIFICATES
SECTION 1. Stockholders Entitled to Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate representing the number
of shares owned by him signed by or in the name of the Corporation by the
President or a Vice President and by the Secretary or an Assistant Secretary of
the Corporation. Any and all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if such officer, transfer agent or registrar continued to discharge said
office or function at the date of issuance.
SECTION 2. Lost, Stolen or Destroyed Stock Certificates. The Corporation
may issue a new stock certificate in place of any certificate theretofore issued
by it which is alleged to have been lost, stolen or destroyed upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issuance of a new certificate
or certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require that the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
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SECTION 3. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent or agents of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the certificate surrendered to the Corporation
and record the transaction upon its books.
SECTION 4. Fixing Record Date.
(a) Notice of Meeting; Vote. 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, 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 shall not be more than sixty nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, 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. 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.
(b) 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 days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by the
Board of Directors, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by the General Corporation
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 the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the Corporation's registered office 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 and prior action by
the Board of Directors is required by the General Corporation Law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on
the day on which the Board of Directors adopts the resolution taking such
prior action.
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(c) Dividend; Distribution; Allotment of Rights. In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend
or other distribution or allotment of any rights or the stockholders
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, and which
record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 5. Registered Stockholders. Except as otherwise required by law,
the Corporation shall be entitled to recognize the exclusive right of the person
registered on its books as the owner of shares to receive dividends in respect
of such shares and to vote as the owner thereof, and 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.
ARTICLE V
INDEMNIFICATION
SECTION 1. Indemnification and Advancement of Expenses.
(a) Indemnification in the Case of Proceedings Other Than by or in the Right of
the Corporation. 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, 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 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), 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 proce eding 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.
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(b) Indemnification in the Case of Proceedings By or in the Right of the
Corporation. 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 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 faith and in a manner he reasonably 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) Indemnification for Expenses. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in de fense of any action, suit or proceeding referred to in
paragraph (a) or (b) of this Section 1, or in 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) Determination of Entitlement to Indemnification. Any indemnification under
paragraph (a) or (b) of this Section 1 (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 paragraph (a) or (b) of this Section 1.
Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable and a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by
the stockholders.
(e) Advancement of Expenses. Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative 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 Article
V. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
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SECTION 2. Indemnification and Advancement not Exclusive Right. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article V shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
Bylaw, 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.
SECTION 3. Insurance. The Corporation shall have power to 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 Article V.
SECTION 4. Certain Definitions. For purposes of this Article V, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to any
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. In addition, for purposes of this Article V,
a 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."
SECTION 5. Continuation. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article V 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 person.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Amendments. The Bylaws may be altered, amended or repealed, in
whole or in part, or new Bylaws may be adopted by the stockholders or by the
Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such
meeting of stockholders or Board of Directors, as the case may be. All such
amendments must be approved by either the holders of a majority of the
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outstanding capital stock entitled to vote thereon or by a majority of the
entire Board of Directors then in office.
SECTION 2. Waiver of Notice. Whenever notice is required to be given under
any provision of the General Corporation Law, the Certificate of Incorporation
or these Bylaws, a written waiver, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting of stockholders, in person or by
proxy, or at a meeting of the Board of Directors or committee thereof shall
constitute a waiver of notice of such meeting, except when the person attends
such 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 the stockholders, directors, or members of
a committee of directors need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation or these Bylaws.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall end on the
thirty-first day of December of each year, unless otherwise provided by
resolution of the Board of Directors.
SECTION 4. Offices. The registered office of the Corporation in the State
of Delaware shall be in care of The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware
19801. The Corporation may also have offices at such other places, both within
and without the State of Delaware, as the Board of Directors may from time to
time determine or the business of the Corporation may require.
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