EXHIBIT 3.3
BYLAWS
OF
GOODRICH PETROLEUM CORPORATION
DELAWARE CORPORATION
TABLE OF CONTENTS
ARTICLE I. OFFICES
Section 1. Registered Office....................................... 1
Section 2. Other Offices........................................... 1
ARTICLE II. STOCKHOLDERS
Section 1. Place of Meetings....................................... 1
Section 2. Quorum; Adjournment of Meetings......................... 1
Section 3. Annual Meetings......................................... 2
Section 4. Special Meetings........................................ 2
Section 5. Record Date............................................. 3
Section 6. Notice of Meetings...................................... 3
Section 7. Stock List.............................................. 3
Section 8. Proxies................................................. 4
Section 9. Voting; Elections; Inspectors........................... 4
Section 10. Conduct of Meetings..................................... 5
Section 11. Treasury Stock.......................................... 5
Section 12. Action Without Meeting.................................. 6
Section 13. Nominations for Election as a Director.................. 6
ARTICLE III. BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office........................... 7
Section 2. Quorum.................................................. 8
Section 3. Place of Meetings; Order of Business.................... 8
Section 4. First Meeting........................................... 8
Section 5. Regular Meetings........................................ 8
Section 6. Special Meetings........................................ 8
Section 7. Removal................................................. 8
Section 8. Vacancies; Increases in the Number of Directors......... 8
Section 9. Compensation............................................ 9
Section 10. Action Without a Meeting; Telephone Conference Meeting.. 9
Section 11. Approval or Ratification of Acts or Contracts by
Stockholders............................................ 9
ARTICLE IV. COMMITTEES
Section 1. Designation; Powers..................................... 10
Section 2. Procedure; Meetings; Quorum............................. 10
Section 3. Substitution of Members................................. 10
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ARTICLE V. OFFICERS
Section 1. Number, Titles and Term of Office....................... 11
Section 2. Salaries................................................ 11
Section 3. Removal................................................. 11
Section 4. Vacancies............................................... 11
Section 5. Powers and Duties of the Chief Executive Officer........ 11
Section 6. Powers and Duties of the Chairman of the Board.......... 11
Section 7. Powers and Duties of the President...................... 12
Section 8. Vice Presidents......................................... 12
Section 9. Treasurer............................................... 12
Section 10. Assistant Treasurers.................................... 12
Section 11. Secretary............................................... 12
Section 12. Assistant Secretaries................................... 13
Section 13. Action with Respect to Securities of Other Corporations. 13
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification................................ 13
Section 2. Indemnification of Employees and Agents................. 14
Section 3. Right of Claimant to Bring Suit......................... 14
Section 4. Nonexclusivity of Rights................................ 14
Section 5. Insurance............................................... 15
Section 6. Savings Clause.......................................... 15
Section 7. Definitions............................................. 15
ARTICLE VII. CAPITAL STOCK
Section 1. Certificates of Stock................................... 15
Section 2. Transfer of Shares...................................... 16
Section 3. Ownership of Shares..................................... 16
Section 4. Regulations Regarding Certificates...................... 16
Section 5. Lost or Destroyed Certificates.......................... 16
ARTICLE VIII. MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year............................................. 16
Section 2. Corporate Seal.......................................... 16
Section 3. Notice and Waiver of Notice............................. 17
Section 4. Resignations............................................ 17
Section 5. Facsimile Signatures.................................... 17
Section 6. Reliance upon Books, Reports and Records................ 17
ARTICLE IX. AMENDMENTS
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DELAWARE BYLAWS
OF
GOODRICH PETROLEUM CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
required by the General Corporation Law of the State of Delaware to be
maintained in the State of Delaware, shall be the registered office named in the
original Certificate of Incorporation of the Corporation, or such other office
as may be designated from time to time by the Board of Directors in the manner
provided by law. Should the Corporation maintain a principal office within the
State of Delaware such registered office need not be identical to such principal
office of the Corporation.
Section 2. Other Offices. 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.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be held
at the principal office of the Corporation, or at such other place within or
without the State of Delaware as shall be specified or fixed in the notices or
waivers of notice thereof.
Section 2. Quorum; Adjournment of Meetings. Unless otherwise required by law
or provided in the Certificate of Incorporation or these bylaws, the holders of
a majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders for the transaction of business and the act of a
majority of such stock so represented at any meeting of stockholders at which a
quorum is present shall constitute the act of the meeting of stockholders. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Notwithstanding the other provisions of the Certificate of Incorporation or
these bylaws, the chairman of the meeting or the holders of a majority of the
issued and outstanding stock, present in person or represented by proxy, at any
meeting of stockholders, whether or not a quorum is present, shall have the
power to adjourn such meeting from time to time, without any notice other than
announcement at the meeting of the time and place of the holding of the
adjourned meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
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record entitled to vote at such meeting. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally called.
Section 3. Annual Meetings. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held on such date, and at such time as the Board of Directors shall fix
and set forth in the notice of the meeting, which date shall be within thirteen
(13) months subsequent to the last annual meeting of stockholders. At the annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the annual meeting. To be properly brought before
the annual meeting of stockholders, business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) otherwise properly brought before
the meeting by a stockholder of the Corporation who is a stockholder of record
at the time of giving of notice provided for in this Section 3, who shall be
entitled to vote at such meeting and who complies with the notice procedures set
forth in this Section 3. For business to be properly brought before an annual
meeting by a stockholder, the stockholder, in addition to any other
applicable requirements, must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders of the Corporation. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting: (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of voting stock of the Corporation
which are beneficially owned by the stockholder, (d) a representation that the
stockholder intends to appear in person or by proxy at the meeting to bring the
proposed business before the annual meeting, and (e) a description of any
material interest of the stockholder in such business. Notwithstanding anything
in these bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 3.
The presiding officer of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 3, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 3, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 3.
Section 4. Special Meetings. Unless otherwise provided in the Certificate of
Incorporation, special meetings of the stockholders for any purpose or purposes
may be called at any time by the Chairman of the Board (if any), by the
President or by a majority of the Board of Directors.
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Section 5. Record Date. For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders, or any adjournment
thereof, or entitled 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 of the Corporation may fix, in advance, a date as
the record date for any such determination of stockholders, which date shall not
be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of
or to vote at such meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if in accordance with Article
VIII, Section 3 of these bylaws notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. If, in accordance
with Section 12 of this Article II, corporate action without a meeting of
stockholders is to be taken, the record date for determining stockholders
entitled to express consent to such corporate action in writing, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed. 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 6. Notice of Meetings. Written notice of the place, date and hour of
all meetings, and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by or at the direction of the
Chairman of the Board (if any) or the President, the Secretary or the other
person(s) calling the meeting to each stockholder entitled to vote thereat not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
Such notice may be delivered either personally or by mail. 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 7. Stock List. A complete list of stockholders entitled to vote at
any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in the name of such stockholder, shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The stock list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
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Section 8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to a corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. Proxies for use at any meeting of stockholders shall be filed with the
Secretary, or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies shall
be received and taken charge of and all ballots shall be received and canvassed
by the secretary of the meeting who shall decide all questions touching upon the
qualification of voters, the validity of the proxies, and the acceptance or
rejection of votes, unless an inspector or inspectors shall have been appointed
by the chairman of the meeting, in which event such inspector or inspectors
shall decide all such questions.
No proxy shall be valid after three (3) years from its date, unless the proxy
provides for a longer period. Each proxy shall be revocable unless expressly
provided therein to be irrevocable and coupled with an interest sufficient in
law to support an irrevocable power.
Should a proxy designate two or more persons to act as proxies, unless such
instrument shall provide the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall have and may
exercise all the powers of voting or giving consents thereby conferred, or if
only one be present, then such powers may be exercised by that one; or, if an
even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect of the
same portion of the shares as he is of the proxies representing such shares.
Section 9. Voting; Elections; Inspectors. Unless otherwise required by law or
provided in the Certificate of Incorporation, each stockholder shall have one
vote for each share of stock entitled to vote which is registered in his name on
the record date for the meeting. Shares registered in the name of another
corporation, domestic or foreign, may be voted by such officer, agent or proxy
as the bylaw (or comparable instrument) of such corporation may prescribe, or in
the absence of such provision, as the Board of Directors (or comparable body) of
such corporation may determine. Shares registered in the name of a deceased
person may be voted by his executor or administrator, either in person or by
proxy.
All voting, except as required by the Certificate of Incorporation or where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by stockholders holding a majority of the issued and outstanding
stock present in person or by proxy at any meeting a stock vote shall be taken.
Every stock vote shall be taken by written ballots, each of which shall state
the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. All elections of
directors shall be by ballot, unless otherwise provided in the Certificate of
Incorporation.
At any meeting at which a vote is taken by ballots, the chairman of the
meeting may appoint one or more inspectors, each of whom shall subscribe an oath
or affirmation to execute faithfully the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result
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thereof. The chairman of the meeting may appoint any person to serve as
inspector, except no candidate for the office of director shall be appointed as
an inspector.
Unless otherwise provided in the Certificate of Incorporation, cumulative
voting for the election of directors shall be prohibited.
Section 10. Conduct of Meetings. The meetings of the stockholders shall be
presided over by the Chairman of the Board (if any), or if he is not present, by
the President, or if neither the Chairman of the Board (if any), nor President
is present, by a chairman elected at the meeting. The Secretary of the
Corporation, if present, shall act as secretary of such meetings, or if he is
not present, an Assistant Secretary shall so act; if neither the Secretary nor
an Assistant Secretary is present, then a secretary shall be appointed by the
chairman of the meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
in order. Unless the chairman of the meeting of stockholders shall otherwise
determine, the order of business shall be as follows:
(a) Calling of meeting to order.
(b) Election of a chairman and the appointment of a secretary if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a
quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors if an annual meeting, or a meeting called
for that purpose.
(h) Unfinished business.
(i) New business.
(j) Adjournment.
Section 11. Treasury Stock. The Corporation shall not vote, directly or
indirectly, shares of its own stock owned by it and such shares shall not be
counted for quorum purposes.
Section 12. Action Without Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action permitted or required by law, the
Certificate of Incorporation or these bylaws to be taken at a meeting of
stockholders, may be taken without a meeting, without prior
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notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by all of the holders of outstanding stock entitled to
vote thereon.
Section 13. Nominations for Election as a Director. Only persons who are
nominated in accordance with the procedures set forth in these bylaws shall be
eligible for election by stockholders as, and to serve as, directors.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of stockholders (a) by or at the direction of the Board
of Directors or (b) by any stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided for in this Section 13, who
shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Section 13. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation (i)
with respect to an election to be held at the annual meeting of the stockholders
of the Corporation, not less than ninety (90) days prior to the anniversary date
of the immediately preceding annual meeting of stockholders of the Corporation,
and (ii) with respect to an election to be held at a special meeting of
stockholders of the Corporation for the election of directors not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed to stockholders of the Corporation as
provided in these bylaws or public disclosure of the date of the special meeting
was made, whichever first occurs. Such stockholder's notice to the Secretary
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serve as a
director if elected), and (y) as to the stockholder giving the notice (i) the
name and address, as they appear on the Corporation's books, of such stockholder
and (ii) the class and number of shares of voting stock of the Corporation which
are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. In the event that a person is validly designated as a nominee to
the Board of Directors in accordance with the procedures set forth in this
Section 13 and shall thereafter become unable or unwilling to stand for election
to the Board of Directors, the Board of Directors or the stockholder who
proposed such nominee, as the case may be, may designate a substitute nominee.
Other than directors chosen pursuant to the provisions of Article III, Section
8, no person shall be eligible to serve as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 13. The
presiding officer of the meeting of stockholders shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 13, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section 13.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors, and subject to the restrictions imposed by law or the Certificate of
Incorporation, they may exercise all the powers of the Corporation.
The number of directors which shall constitute the whole Board of Directors,
shall be no less than six and no more than twelve, as determined from time to
time by resolution of the Board of Directors (provided that no decrease in the
number of directors which would have the effect of shortening the term of an
incumbent director may be made by the Board of Directors). If the Board of
Directors makes no such determination, the number of directors shall be the
number set forth in the Certificate of Incorporation. Each director shall hold
office for the term for which he is elected, and until his successor shall have
been elected and qualified or until his earlier death, resignation or removal.
The Board of Directors shall be divided into three classes: Class I, Class II
and Class III. The number of directors in each class shall be the whole number
contained in the quotient arrived at by dividing the authorized number of
Directors by three and if a fraction is also contained in such quotient and if
such fraction is one-third, the extra Director shall be a member of Class III,
and if the fraction is two-thirds, one extra Director shall be a member of Class
III and the other shall be a member of Class II. Except as otherwise provided in
this Section 1, each Director elected at an annual meeting shall serve for a
term ending on the third annual meeting following the meeting at which such
Director was elected; provided, however, that the Directors first elected to
Class I shall serve for a term ending at the annual meeting in 1996, the
Directors first elected to Class II shall serve for a term ending at the annual
meeting in 1997 and the Directors first elected to Class III shall serve for a
term ending at the annual meeting in 1998. The foregoing notwithstanding, each
Director shall serve until his successor shall have been duly elected and
qualified or until his earlier death, resignation or removal. If for any reason
the number of Directors in the various classes shall not conform with the
formula set forth in this Section, the Board of Directors may redesignate any
Director in a different class in order that the balance of Directors in such
class shall conform thereto; provided, however, that no such redesignation may
have the effect of reducing the term to which a Director was elected.
Unless otherwise provided in the Certificate of Incorporation, directors need
not be stockholders nor residents of the State of Delaware.
Section 2. Quorum. Unless otherwise provided in the Certificate of
Incorporation, a majority of the total number of directors shall constitute a
quorum for the transaction of business of the Board of Directors and the vote of
a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
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Section 3. Place of Meetings; Order of Business. The directors may hold their
meetings and may have an office and keep the books of the Corporation, except as
otherwise provided by law, in such place or places, within or without the State
of Delaware, as the Board of Directors may from time to time determine by
resolution. At all meetings of the Board of Directors business shall be
transacted in such order as shall from time to time be determined by the
Chairman of the Board (if any), or in his absence by the President, or by
resolution of the Board of Directors.
Section 4. 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. Notice of such meeting shall not be required. 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 times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
Section 6. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board (if any), the President or, on the
written request of any two directors, by the Secretary, in each case on at least
twenty-four (24) hours personal, written, telegraphic, cable or wireless notice
to each director. Such notice, or any waiver thereof pursuant to Article VIII,
Section 3 hereof, need not state the purpose or purposes of such meeting, except
as may otherwise be required by law or provided for in the Certificate of
Incorporation or these bylaws.
Section 7. Removal. Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors; provided that, unless the
Certificate of Incorporation otherwise provides, if the Board of Directors is
classified, then the stockholders may effect such removal only for cause; and
provided further that, if the Certificate of Incorporation expressly grants to
stockholders the right to cumulate votes for the election of directors and if
less than the entire board is to be removed, no director may be removed without
cause if the votes cast against his removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of Directors, or, if
there be classes of directors, at an election of the class of directors of which
such director is a part.
Section 8. Vacancies; Increases in the Number of Directors. Unless otherwise
provided in the Certificate of Incorporation, vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, although less than
a quorum, or a sole remaining director; and any director so chosen shall hold
office until the next annual election and until his successor shall be duly
elected and shall qualify, unless sooner displaced.
If the directors of the Corporation are divided into classes, any directors
elected to fill vacancies or newly created directorships shall hold office until
the next election of the class for
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which such directors shall have been chosen, and until their successors shall be
duly elected and shall qualify.
Section 9. Compensation. Unless otherwise restricted by the Certificate of
Incorporation, the Board of Directors shall have the authority to fix the
compensation of directors.
Section 10. Action Without a Meeting; Telephone Conference Meeting. Unless
otherwise restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board of Directors, or any committee
designated by the Board of Directors, 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, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee. Such consent shall have the
same force and effect as a unanimous vote at a meeting, and may be stated as
such in any document or instrument filed with the Secretary of State of
Delaware.
Unless otherwise restricted by the Certificate of Incorporation, subject to
the requirement for notice of meetings, members of the Board of Directors, or
members of any committee designated by the Board of Directors, may participate
in a meeting of such Board of Directors or committee, as the case may be, by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 11. Approval or Ratification of Acts or Contracts by Stockholders.
The Board of Directors in its discretion may submit any act or contract for
approval or ratification at any annual meeting of the stockholders, or at any
special meeting of the stockholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or be
ratified by the vote of the stockholders holding a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote and present in
person or by proxy at such meeting (provided that a quorum is present), shall be
as valid and as binding upon the Corporation and upon all the stockholders as if
it has been approved or ratified by every stockholder of the Corporation. In
addition, any such act or contract may be approved or ratified by the written
consent of stockholders holding a majority of the issued and outstanding shares
of capital stock of the Corporation entitled to vote and such consent shall be
as valid and as binding upon the Corporation and upon all the stockholders as if
it had been approved or ratified by every stockholder of the Corporation.
ARTICLE IV
COMMITTEES
Section 1. Designation; Powers. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more committees,
including, if they shall so determine, an executive committee, each such
committee to consist of one or more of the directors of the Corporation. Any
such designated committee shall have and may exercise such of the powers
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and authority of the Board of Directors in the management of the business and
affairs of the Corporation as may be provided in such resolution, except that no
such committee shall have the power or authority of the Board of Directors in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution of the Corporation, or amending, altering or
repealing the bylaws or adopting new bylaws for the Corporation and, unless such
resolution or the Certificate of Incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such designated committee may authorize the
seal of the Corporation to be affixed to all papers which may require it. In
addition to the above such committee or committees shall have such other powers
and limitations of authority as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 2. Procedure; Meetings; Quorum. Any committee designated pursuant to
Section 1 of this Article shall choose its own chairman, shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
requested, shall fix its own rules or procedures, and shall meet at such times
and at such place or places as may be provided by such rules, or by resolution
of such committee or resolution of the Board of Directors. At every meeting of
any such committee, the presence of a majority of all the members thereof shall
constitute a quorum and the affirmative vote of a majority of the members
present shall be necessary for the adoption by it of any resolution.
Section 3. Substitution of Members. 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 such committee. In the absence
or disqualification of a member of a committee, the member or members present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member.
ARTICLE V
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the Corporation
shall be a President, one or more Vice Presidents (any one or more of whom may
be designated Executive Vice President or Senior Vice President), a Treasurer, a
Secretary and, if the Board of Directors so elects, a Chairman of the Board 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 be duly
elected and shall qualify or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided. Any number of offices may
be held by the same person, unless the Certificate of Incorporation provides
otherwise. Except for the Chairman of the Board, if any, no officer need be a
director.
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Section 2. Salaries. The salaries or other compensation of the officers and
agents of the Corporation shall be fixed from time to time by the Board of
Directors.
Section 3. Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed, either with or without cause, by the vote of a
majority of the whole Board of Directors at a special meeting called for the
purpose, or at any regular meeting of the Board of Directors, provided the
notice for such meeting shall specify that the matter of any such proposed
removal will be considered at the meeting 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 4. Vacancies. Any vacancy occurring in any office of the Corporation
may be filled by the Board of Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The President
shall be the chief executive officer of the Corporation unless the Board of
Directors designates the Chairman of the Board as chief executive officer.
Subject to the control of the Board of Directors and the executive committee (if
any), the chief executive officer shall have general executive charge,
management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; he may agree upon and execute all leases, contracts, evidences
of indebtedness and other obligations in the name of the Corporation and may
sign all certificates for shares of capital stock of the Corporation; and shall
have such other powers and duties as designated in accordance with these bylaws
and as from time to time may be assigned to him by the Board of Directors.
Section 6. Powers and Duties of the Chairman of the Board. If elected, the
Chairman of the Board shall preside at all meetings of the stockholders and of
the Board of Directors; and he shall have such other powers and duties as
designated in these bylaws and as from time to time may be assigned to him by
the Board of Directors.
Section 7. Powers and Duties of the President. Unless the Board of Directors
otherwise determines, the President shall have the authority to agree upon and
execute all leases, contracts, evidences of indebtedness and other obligations
in the name of the Corporation; and, unless the Board of Directors otherwise
determines, he shall, in the absence of the Chairman of the Board or if there be
no Chairman of the Board, preside at all meetings of the stockholders and
(should he be a director) of the Board of Directors; and he shall have such
other powers and duties as designated in accordance with these bylaws and as
from time to time may be assigned to him by the Board of Directors.
Section 8. Vice Presidents. In the absence of the President, or in the event
of his inability or refusal to act, a Vice President designated by the Board of
Directors shall perform the duties of the President, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
President. In the absence of a designation by the Board of Directors of a Vice
President to perform the duties of the President, or in the event of his absence
or inability or refusal to act, the Vice President who is present and who is
senior in terms of time as a Vice President of the
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Corporation shall so act. The Vice Presidents shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Section 9. Treasurer. The Treasurer shall have responsibility for the custody
and control of all the funds and securities of the Corporation, and he shall
have such other powers and duties as designated in these bylaws and as from time
to time may be assigned to him by the Board of Directors. He shall perform all
acts incident to the position of Treasurer, subject to the control of the chief
executive officer and 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 10. Assistant Treasurers. Each Assistant Treasurer shall have the
usual powers and duties pertaining to his office, together with such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer's absence or inability or refusal to act.
Section 11. Secretary. The Secretary shall keep the minutes of all meetings
of the Board of Directors, committees of directors and the stockholders, in
books provided for that purpose; he shall attend to the giving and serving of
all notices; he may in the name of the Corporation affix the seal of the
Corporation to all contracts of the Corporation and attest the affixation of the
seal of the Corporation thereto; he may sign with the other appointed officers
all certificates for shares of capital stock of 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 inspection of any director upon application
at the office of the Corporation during business hours; he shall have such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the Board of Directors; and he shall in general perform all
acts incident to the office of Secretary, subject to the control of the chief
executive officer and the Board of Directors.
Section 12. Assistant Secretaries. Each Assistant Secretary shall have the
usual powers and duties pertaining to his office, together with such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors. The
Assistant Secretaries shall exercise the powers of the Secretary during that
officer's absence or inability or refusal to act.
Section 13. Action with Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the chief executive officer shall
have power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of security holders of or with respect to any action of
security holders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative, is or was or has agreed to become
a director or officer of the Corporation or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving or having agreed to
serve as a director or officer, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment) against all expense, liability
and loss (including without limitation, attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity hereunder and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Corporation. The right to indemnification conferred in
this Article VI shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
current, former or proposed director or officer in his or her capacity as a
director or officer or proposed director or officer (and not in any other
capacity in which service was or is or has been agreed to be rendered by such
person while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such indemnified person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified person is not entitled to be
indemnified under this Section or otherwise.
Section 2. Indemnification of Employees and Agents. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation, individually or as a group, with the same scope and
effect as the indemnification of directors and officers provided for in this
Article.
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Section 3. Right of Claimant to Bring Suit. If a written claim received by
the Corporation from or on behalf of an indemnified party under this Article VI
is not paid in full by the Corporation within ninety days after such receipt,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 4. Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article VI shall not be
exclusive of any other right which any person may have or hereafter acquire
under any law (common or statutory), provision of the Certificate of
Incorporation of the Corporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any person who is or was serving as 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 expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 6. Savings Clause. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director and
officer of the Corporation, as to costs, charges and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article VI that shall not have been invalidated and to the fullest extent
permitted by applicable law.
Section 7. Definitions. For purposes of this Article, reference to the
"Corporation" shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger prior to (or, in the case of an entity specifically
designated in a resolution of the Board of Directors, after) the adoption hereof
and which, if its
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separate existence had continued, would have had the 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 Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. The certificates for shares of the capital
stock of the Corporation shall be in such form, not inconsistent with that
required by law and the Certificate of Incorporation, as shall be approved by
the Board of Directors. The Chairman of the Board (if any), President or a Vice
President shall cause to be issued to each stockholder one or more certificates,
under the seal of the Corporation or a facsimile thereof if the Board of
Directors shall have provided for such seal, and signed by the Chairman of the
Board (if any), President or a Vice President and the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer certifying the number of
shares (and, if the stock of the Corporation shall be divided into classes or
series, the class and series of such shares) owned by such stockholder in the
Corporation; provided, however, that any of or all the signatures on the
certificate may be facsimile. The stock record books and the blank stock
certificate books shall be kept by the Secretary, or at the office of such
transfer agent or transfer agents as the Board of Directors may from time to
time by resolution determine. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature or signatures shall have been
placed upon any such certificate or certificates shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued by the
Corporation, such certificate may nevertheless be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or registrar
at the date of issue. The stock certificates 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 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. Upon
surrender to the Corporation or a transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 3. Ownership of Shares. The Corporation shall be entitled to treat
the holder of record of any share or shares of capital stock of the Corporation
as the holder in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of Delaware.
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Section 4. Regulations Regarding Certificates. The Board of Directors shall
have the 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 capital stock of the Corporation.
Section 5. Lost or Destroyed Certificates. The Board of Directors may
determine the conditions upon which a new certificate of stock may be issued in
place of a certificate which is alleged to have been lost, stolen or destroyed;
and may, in their discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnify the
Corporation and each transfer agent and registrar against any and all losses or
claims which may arise by reason of the issue of a new certificate in the place
of the one so lost, stolen or destroyed.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such as
established from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation. The Secretary shall have charge of
the seal (if any). If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by the Assistant Secretary or Assistant Treasurer.
Section 3. Notice and Waiver of Notice. Whenever any notice is required to be
given by law, the Certificate of Incorporation or under the provisions of these
bylaws, said notice shall be deemed to be sufficient if given (i) by
telegraphic, cable or wireless transmission or (ii) by deposit of the same in a
post office box in a sealed prepaid wrapper addressed to the person entitled
thereto at his post office address, as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day of
such transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Certificate of
Incorporation or under any of the provisions of these bylaws, a written waiver
thereof, 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 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. 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 the bylaws.
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Section 4. Resignations. Any director, member of a committee or officer may
resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time be specified, at the time of
its receipt by the chief executive officer or Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
Section 6. Reliance upon Books, Reports and Records. Each director and each
member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
ARTICLE IX
AMENDMENTS
If provided in the Certificate of Incorporation of the Corporation, the Board
of Directors shall have the power to adopt, amend and repeal from time to time
bylaws of the Corporation, subject to the right of the stockholders entitled to
vote with respect thereto to amend or repeal such bylaws as adopted or amended
by the Board of Directors.
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