EXHIBIT 3.7
HARKEN ENERGY CORPORATION
(A Delaware corporation)
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICERS
Section 1.01. Registered Office. The registered office and address of
the corporation is Capitol Services, Inc., 615 South DuPont Highway, Dover,
Delaware 19901. The name of its registered agent at such place shall be Capitol
Services, Inc. The board of directors may change the corporation's registered
office or registered agent, or both, in the manner set forth in Section 133 of
the General Corporation Law of the State of Delaware (hereinafter call the
"Act").
Section 1.02. 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
MEETINGS OF STOCKHOLDERS
Section 2.01. Place of Meetings. All meetings of the stockholders shall
be held at Houston, Texas, or at such other place and at such address as shall
be specified in the notice of such meeting.
Section 2.02. Annual Meetings; Elections of Directors. Annual Meetings
of Stockholders commencing with the year 2002 shall be held at the time and
place designated by the board of directors and as set forth in the notice of the
meeting, at which meeting shall be elected the successors to the class of
directors whose terms shall expire in such year and further shall transact such
other business as may properly be brought before the meeting.
Section 2.03. Special Meetings. Special Meetings of the stockholders,
for any purpose(s), unless otherwise prescribed by the Act or by the certificate
of incorporation, may be called by the chairman of the board, the president or
secretary, and shall be called by the chairman of the board, the president or
secretary at the request in writing of a majority of the board of directors, or
at the request in writing of the holders owning at least one-tenth (1/10) in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose(s) of the proposed
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 2.04. Notices. Written or printed notice of the annual or any
special meeting stating the place, day, and hour of the meeting and, in the case
of a special meeting, the purpose(s) for which the meeting is called, shall be
delivered to each stockholder of record entitled to vote not less than ten (10)
nor more than sixty (60) days before the date of the meeting by or at the
direction of the chairman of the board, the president, the secretary or the
officer or person calling the meeting. In accordance with the provisions of the
Act, a single notice may be given to stockholders sharing an address if
consented to by the stockholders at that address, which consent shall be
revocable.
Section 2.05. Voting List. The officer who has charge of the stock
transfer books of the corporation shall make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders
entitled to vote at said meeting or any adjournment thereof, arranged in
alphabetical order, with address of and the number of shares held by each. Such
list shall be kept on file at the registered office of the corporation for a
period of ten (10) days prior to such meeting and shall be subject to inspection
by any stockholder at any time during usual business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the whole time of the
meeting. The original stock transfer books shall be prima facie evidence as to
who are stockholders entitled to examine such list or transfer books and to vote
at any meeting of stockholders.
Section 2.6. Quorum and Adjournment.
(a) 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 all meetings of the stockholders for the transaction of
business except as otherwise provided by the Act or by the certificate of
incorporation. Without regard to whether such quorum shall be presented or
represented at the meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting. At such adjourned meeting at which quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
(b) When a quorum is present at any meeting, the vote of the holders of
a majority of the shares having voting power present, in person or represented
by proxy, shall decide any question brought before such meeting, unless the
question is one upon which by express provision shall govern and control the
decision of such question. 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.
Section 2.07. Voting Rights.
At any meeting of stockholders --
(a) Each outstanding share, regardless of class, shall be entitled to
one (1) vote on each matter submitted to a vote, except to the extent that the
voting rights of the shares of any class or classes are limited or denied by the
certificate of incorporation as permitted by the Act.
(b) Treasury shares, shares of stock owned by another corporation the
majority of voting stock of which is owned or controlled by this corporation,
and shares of stock held by this corporation in a fiduciary capacity shall not
be voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time.
(c) A stockholder may vote either in person or by proxy executed in
writing by the stockholder or by his duly authorized attorney in fact. No proxy
shall be voted after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable by law.
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(d) At all elections of directors each holder of stock entitled to vote
shall be entitled to cast for the election of directors as many votes as shall
equal the number of shares of stock held multiplied by the number of directors
to be elected, and to cumulate his votes and cast all of such votes for a single
director or distribute such votes among the number to be voted for in such
manner as the holder may see fit and with notice as provided in the certificate
of incorporation.
(e) Shares standing in the name of another corporation, domestic or
foreign, may be voted on by such officer, agent, or proxy as the bylaws of such
corporation may authorize or, in the absence of such authorization, as the board
of directors of such corporation may determine.
(f) Shares held by an administrator, guardian or conservator may be
voted by him so long as such shares forming part of an estate being served by
him, either in person or by proxy, without a transfer of such shares into his
name. Shares standing in the name of a trustee may be voted by him, either in
person or by proxy, but no trustee shall be entitled to vote shares held by him
without a transfer of such shares into his name as trustee.
(g) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
(h) A stockholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 2.08. Method of Voting. Voting on any question or in any
election may be by voice vote or show of hands unless the presiding officer
shall order, or the holders of at least ten percent (10%) of the shares entitled
to vote shall demand, that voting be by written ballot.
Section 2.09. Written Consent. Any action required to be or which may
be taken at a meeting of the stockholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by a
majority of the stockholders entitled to vote with respect to the subject matter
thereof and then delivered to the secretary of the corporation for inclusion in
the minute book of the corporation.
Section 2.10. Stockholder Proposals. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the board of directors, otherwise properly
brought before the meeting by or at the direction of the board of directors or
otherwise properly brought before the meeting by a stockholder. In addition to
any other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the stockholder 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 60 days nor more
than 90 days prior to the date of the corporation's proxy statement released to
stockholders in connection with the annual meeting for the previous year;
provided, however, that in the event that less than 70 day's notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting, (i) a brief description
of the business
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desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of the
corporation that are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business. Notwithstanding anything
in these bylaws to the contrary, no business shall be conducted at the annual
meeting except in accordance with the procedures set forth in this Section 2.10,
provided, however, that nothing in this Section 2.10 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the annual
meeting in accordance with said procedure. At a special meeting of stockholders,
only such business shall be conducted as shall have been brought before the
meeting by or at the direction of the board of directors.
Section 2.11. Nominations of Persons for Election to the Board of
Directors. In addition to any other applicable requirements, only persons who
are nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the board of
directors of the corporation may be made at a meeting of stockholders by or at
the direction of the board of directors, by any nominating committee or person
appointed by the board of directors or by any stockholder of the corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 2.11. 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 not less than 60 days nor
more than 90 days prior to the date of the corporation's proxy statement
released to stockholders in connection with the annual meeting for the previous
year; provided, however, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of the corporation beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice, (i) the name and record address of the
stockholder, and (ii) the class and number of shares of the corporation
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as a
director of the corporation. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth herein.
ARTICLE III
DIRECTORS
Section 3.01. Number. The business and affairs of the corporation
shall be managed by a board of nine (9) directors, who need not be residents of
the State of Delaware or stockholders of the corporation.
Section 3.02. Election. At each annual meeting of stockholders, the
stockholders shall elect the successors to the class of directors whose term
shall expire. Each director elected shall hold office until his successor shall
be elected and qualified or until he has been removed as provided in Section
3.04 herein.
Section 3.03. Vacancies.
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(a) Vacancies on the board of directors resulting from any cause may be
filled by the affirmative vote of a majority of the directors then in office,
though less than a quorum. A director elected to fill a vacancy shall be elected
for the unexpired term of his predecessor in office.
(b) Any open directorship which is created due to an increase in the
number of authorized directors may be filled by the affirmative vote of a
majority of the directors then in office, though less than a quorum. In creating
such a new directorship by increasing the authorized directors, the board of
directors shall establish thelass of each new directorship so created. The
person who is elected by the board of directors to fill such newly created
directorship shall so serve with the other members of such class of directors
until that class's term shall expire or until their respective successors are
duly elected and qualified.
Section 3.04. Removal. Any director may only be removed for cause and
only in accordance with the provisions of the certificate of incorporation of
the corporation.
Section 3.05. Compensation of Directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary or annual fee as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings or for serving on
such committees. Such levels of compensation shall be set from time to time by
the board of directors.
Section 3.06. Meetings of the Board of Directors.
(a) Place. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
(b) Annual Meeting. The board of directors shall meet each year
immediately after the annual meeting of stockholders, at the place where such
meeting of stockholders was held, unless a different time and place be fixed by
the vote of the directors prior to the annual meeting, for the purpose of
organization, election of officers, and consideration of any other business that
may properly be brought before the meeting. No notice of such meeting shall be
necessary to either old or new members of the board of directors. In the event
such meeting is not held immediately following the annual meeting, or at the
time and place as fixed by the directors, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
(c) Regular Meetings. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board by resolution.
(d) Special Meetings. Special meetings of the board of directors may be
called by the chairman of the board or by the president, and shall be called by
the president or secretary upon the written request of two (2) directors.
Written notice of special meetings of the board of directors shall be given to
each director at least three (3) days before the date of each meeting.
(e) Quorum. A majority of the number of directors fixed by the bylaws
shall constitute a quorum for the transaction of business. The act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the board of directors, except as may be otherwise specifically provided
by the Act
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or by the certificate of incorporation. 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.
(f) Telephone Meeting. Annual, regular and special meetings of the
board of directors, upon proper notice or waiver thereof, may be held 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 such a meeting shall constitute presence in person at the meeting, except
where a director participates in the meeting for the express purpose of
objecting to the transaction of any business on the grounds that the meeting is
not lawfully called or convened.
(g) Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the board of directors, may be taken without a meeting if
a consent in writing, setting forth the action so taken is signed by all the
members of the board of directors and such unanimous consent shall have the same
force and effect as a unanimous vote at a meeting of the board of directors.
ARTICLE IV
EXECUTIVE COMMITTEE
Section 4.01. Designation of Executive Committee. The board of
directors, by resolution adopted by a majority of the number of directors fixed
by the bylaws, may designate two (2) or more directors to constitute an
executive committee. The designation of such executive committee and the
delegation of authority herein granted shall not operate to relieve the board of
directors, or any member thereof, of any responsibility imposed upon it or him
by law. No member of the executive committee shall continue to be a member
thereof after he ceases to be a director of the corporation. The board of
directors shall have the power at any time to increase or decrease the number of
members of the executive committee, to fill vacancies thereon, to change any
member thereof, and to change the functions or terminate the existence thereof.
Section 4.02. Powers of the Executive Committee. During the interval
between meetings of the board of directors, the executive committee shall have
and may exercise all of the authority of the board of directors in the business
and affairs of the corporation except where action of the board of directors is
specified by the Act or other applicable law, including power to authorize the
seal of the corporation to be affixed to all papers which may require it. The
executive committee may also from time to time formulate and recommend to the
board of directors for approval general policies regarding the management of the
business and affairs of the corporation. All minutes of meetings of the
executive committee shall be submitted to the next succeeding meeting of the
board of directors for approval; the failure to submit the same or to receive
the approval thereof shall not invalidate any completed or incompleted action
taken by the corporation upon authorization by the executive committee prior to
the time at which the same should have been, or was, submitted as above
provided.
Section 4.03. Chairman and Procedure. Upon the designation of an
executive committee by the board of directors, such executive committee shall
elect one of its members as chairman and may elect one of its members as vice
chairman and shall adopt rules of procedure providing, among other things, for
the manner of calling meetings, giving notices thereof, quorum requirements
therefor, and the methods of conducting same.
ARTICLE V
OFFICERS
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Section 5.01. Enumeration. The officers of the corporation shall be
appointed by the board of directors, and shall be a chairman of the board and
chief executive officer, a vice chairman of the board, president, senior vice
president, one or more vice presidents (with or without such descriptive titles
as the board of directors may deem appropriate), a secretary, a treasurer and a
controller. The board may also appoint any one or more of the following
officers: assistant secretaries and assistant treasurers. Any two or more
offices may be held by the same person except the offices of president and
secretary. The board of directors may appoint such other officers and agents as
it shall deem necessary, 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.
Section 5.02. General Duties. All officers and agents of the
corporation, as between themselves and the corporation, shall have such
authority and perform such duties in the management of the corporation as may be
provided in the by laws, or as may be determined by resolutions of the board of
directors not inconsistent with the bylaws.
Section 5.03. Election and Term of Office. The officers of the
corporation shall be elected annually by the board of directors at the first
meeting of the board of directors held after each annual meeting of
stockholders, or as soon thereafter as conveniently as vacancies may be filled
or new offices filled at any meeting of the board of directors. Each officer
shall hold office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign or shall have been
removed in the manner provided in Section 5.04 herein.
Section 5.04. Removal. Any officer or agent elected or appointed by the
board of directors or the executive committee may be removed by the board of
directors whenever in its judgment the best interests of the corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 5.05. Resignations. Any officer may resign at any time by
giving notice to the board of directors, or to the chairman of the board,
president or secretary. Such resignation shall take effect at the time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5.06. Vacancies. Any vacancy in any office because of death,
resignation, removal, or other cause, shall be filled for the unexpired portion
of the term in the manner prescribed in the bylaws for the election or
appointment to such office.
Section 5.07. Salaries. The salaries of the officers shall be fixed,
from time to time, by the board of directors. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
Section 5.08. Chairman of the Board. The chairman of the board shall be
chosen from among the directors and shall be the chief executive officer of the
corporation. The chairman of the board shall have general supervision over all
other officers as well as over the business and affairs of the corporation. The
chairman shall preside at all meetings of the board of directors and of the
stockholders and shall have such other authority and responsibility as is
designated to him by the board of directors from time to time.
Section 5.09. Vice Chairman of the Board. The vice chairman shall be
chosen from among the directors. He shall preside at meetings of the board in
the absence of the chairman. He shall have such other
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duties as shall be delegated to him by the chairman or by the board of
directors.
Section 5.10. President. The president shall be the chief operating
officer of the corporation and shall have general supervision over its business
and affairs, subject to the control of the chairman and the board of directors.
As chief operating officer of the corporation the president shall have general
supervision over the subordinate officers and shall delegate and determine their
duties. He shall, at the discretion of or in the absence of the chairman of the
board, preside at meetings of the stockholders, and in the absence of the
chairman of the board, at meetings of the board of directors.
Section 5.11. Vice Presidents. The vice presidents in the order of
their seniority, unless otherwise determined by the board of directors, shall,
in the absence or disability of the president, perform the duties and exercise
the powers of the president. If one of the vice presidents be designated as
executive vice president, he shall be the senior vice president. They shall
generally assist the president and exercise such other powers and perform such
other duties as are delegated to them by the president and as the board of
directors may prescribe.
Section 5.12. Secretary. The secretary shall attend all meetings of
the board of directors and all meetings of the stockholders and shall keep or
cause to be kept in books provided for that purpose the minutes of all meetings
of the board of directors and all meetings of stockholders and shall perform
like duties for the standing committees when required. He shall see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law. He shall be custodian of the records (other than financial
records) and the seal of the corporation and, when authorized by the board of
directors, shall affix the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of the
treasurer or an assistant secretary, any of which signatures may be facsimile.
In general, he shall perform all duties incident to the office of secretary and
such other duties as may, from time to time, be assigned to him by the board of
directors, the chairman of the board, or the president.
Section 5.13. Assistant Secretaries. The assistant secretaries in the
order of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary. They shall perform such other duties and
have such other powers as the board of directors, the chairman of the board, or
the president may from time to time prescribe.
Section 5.14. Treasurer. The treasurer shall be the financial officer
of the corporation, shall have charge and custody of, and be responsible for,
all funds and securities of the corporation; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation;
and shall deposit all such funds and other valuable effects in the name and to
the credit of the corporation in such banks or other depositories as shall be
designated by the board of directors. In general, he shall perform all the
duties incident to the office of treasurer and such other duties as, from time
to time, may be designated to him by the board of directors, the chairman of the
board or the president. He shall render to the president and the board of
directors, whenever the same shall be required, an account of all his
transactions as treasurer and of the financial condition of the corporation.
Section 5.15. Assistant Treasurers. The assistant treasurers in the
order of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer. They shall perform such other duties and
have such other powers as the board of directors, the chairman of the board or
the president may from time to time prescribe.
Section 5.16. Controller. The controller shall be a financial officer
of the corporation and assist the treasurer in the discharge of his duties, as
described in Section 5.14 above, and perform any and all duties
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designated to him by the board of directors, the chairman of the board, the
president or the treasurer.
Section 5.17. General Counsel. The general counsel shall be the chief
legal officer of the corporation. The person designated as general counsel may
hold any other office to which elected. The board may appoint an individual
lawyer or a law firm as the general counsel of the corporation, as it may elect.
If a law firm should be selected, then one member thereof shall be designated as
the particular lawyer in such firm whose personal services are contemplated. The
general counsel shall, when called upon, counsel and advise with the officers of
the corporation on any legal matters which may arise in the conduct of the
corporation's business, shall handle all claims and litigation involving the
corporation and shall perform such further legal services as may be contemplated
or requested by the board of directors.
Section 5.18. Bonding. If required by the board of directors, all or
any one or more of the officers (and particularly the treasurer and assistant
treasurers) shall give the corporation a bond in such amount, with such surety
or sureties, and subject to such renewal requirements, as may be ordered by the
board of directors for the faithful performance of the duties of his office and
for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 5.19. Other Officers and Titles. The board of directors may
appoint such other officers, attorneys in fact or other representatives and may
create such other officers and/or titles as it may from time to time determine
to be appropriate to carrying out the corporation's business. The board of
directors may further identify any office or officer with a specification of an
area or areas of focus or primary responsibility, as it shall from time to time
determine to be appropriate.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND EMPLOYEES
The corporation shall indemnify any director, officer, or employee, or
former director, officer or employee of the corporation, or any person who may
have served at its request as a director, officer or employee of another
corporation of which this corporation owns shares of capital stock, or of which
it is a creditor, as more specifically provided in the certificate of
incorporation.
ARTICLE VIII
CAPITAL STOCK
SECTION 8.01. Certificates Representing Shares. The shares of capital
stock of the corporation shall be represented by certificates signed by, or in
the name of the corporation by, the president or vice president and the
secretary or an assistant secretary of the corporation and shall be sealed with
the seal of the corporation or a facsimile thereof. If the corporation shall be
authorized to issue more than one class of stock, the designations, preferences,
limitations and relative rights of each class and the variations in the relative
rights and preferences of each series of any preferred or special class of stock
shall be set forth upon the face or back thereof in full or summary form or be
incorporated by reference on the face or back of the certificate in accordance
with the provisions of the Act.
Section 8.02. Facsimile Signatures. If the certificate is countersigned
by a transfer agent, or registered by a registrar, other than the corporation
itself or an employee of the corporation, the signature of the chairman, the
president, vice president, secretary or assistant secretary may be facsimile. In
case any officer(s) who have
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signed, or whose facsimile signature(s) have been placed upon such
certificate(s) shall have ceased to be such officer(s) of the corporation,
whether because of death, resignation or otherwise, before such certificate(s)
is issued by the corporation, such certificate(s) may be issued and delivered as
though the person(s) who signed such certificate(s) or who facsimile
signature(s) have been placed thereon were such officer(s) at the date of its
issuance.
Section 8.03. Lost, Stolen or Destroyed Certificates. The corporation
may issue a new certificate(s), in the place of any certificate(s) theretofore
issued by the corporation alleged to have been lost, stolen or destroyed, but
the board of directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to furnish affidavit as to such loss,
theft, or destruction, and to give a bond in such form and substance, and with
such surety or sureties, with fixed or open penalty, as it may direct, to
indemnify the corporation, the transfer agent, and the registrar against any
claim that may be made on account of the alleged loss, theft or destruction of
such certificate. The board of directors may established with the transfer agent
a blanket bond procedure.
Section 8.04. Transfers of Stock. Upon surrender to the corporation or
the 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 and
record the transaction upon its books.
Section 8.05. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to or interest in such
share(s) 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 Delaware.
Section 8.06. Right of Inspection. Any person who shall have been a
stockholder of record for at least six (6) months immediately preceding his
demand, or who shall be the holder of record of at least five percent (5%) of
all the outstanding shares of the corporation, upon written demand stating the
purpose thereof, shall have the right to examine, in person or by agent or
attorney, at any reasonable time or times during business hours, for any proper
purpose, the corporation's books and records of account, minutes and records of
stockholders, and shall be entitled to make extracts therefrom.
Section 8.07. Stock Options and Agreements. Any stockholder of this
corporation may enter into agreements giving to any other stockholder(s) or any
third party an option to purchase any of this stock in the corporation; and such
shares of stock shall thereupon be subject to such agreement and transferable
only upon proof of compliance therewith; provided, however, that a copy of such
agreement be filed with the corporation and reference thereto placed upon the
certificate representing said shares of stock.
ARTICLE IX
GENERAL PROVISIONS -- SPECIAL CORPORATE ACTS
Section 9.01. Notice. Whenever, under law, the certificate of
incorporation or these bylaws, notice is required to be given to any
stockholder, director or member of any committee of the board of directors, such
notice shall be written or printed and delivered personally or mailed, with
postage prepaid thereon, to the directors or stockholders at their addresses
appearing on the books of the corporation. Notice by mail shall be deemed to be
given at the time when the same shall be mailed. Notice may also be given by
facsimile or other electronic transmission. For purposes of these bylaws,
"electronic transmission" means any form of
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communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by the recipient
through an automated process. Neither the business to be transacted at or the
purpose of any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 9.02. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the Act or by the certificate of incorporation or
by these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a director at a meeting shall
constitute waiver of notice of such meeting except where a director attends a
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 9.03. Closing of Transfer Books - 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 receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the board of directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any case, sixty (60)
days. If the stock transfer books shall be closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books, the board of directors may
fix in advance a date as a record date for any such determination of
stockholders, such date in any case to be not more than sixty (60) days, and in
the case of a meeting of stockholders, not less than ten (10) days prior to the
date on which the particular action requiring such determination of stockholders
is to be taken. If the stock transfer books are not closed and no record date is
fixed for the determination of stockholders entitled to notice of or to vote at
a meeting of stockholders, or stockholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders has been made as provided in
this Section 9.03, such determination shall apply to any adjournment thereof;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
Section 9.04. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation and Section 170 of the Act.
Section 9.05. Execution of Deeds, Contracts, Etc. Subject always to the
specific directions of the board of directors, all deeds and mortgages made by
the corporation and all other written contracts and agreements to which the
corporation shall be a party shall be executed in its name by the chairman of
the board, the president or one of the vice presidents; and the secretary or an
assistant secretary, when necessary or required, shall affix and attest the
corporate seal thereto.
Section 9.06. Endorsement of Stock Certificates. Subject always to the
specific directions of the board of directors, any share(s) of stock issued by
any other corporation and owned by the corporation (including reacquired shares
of stock of the corporation), may, for sale or transfer, be endorsed in the name
of the corporation by the chairman of the board, the president or one of its
vice presidents, and attested by the secretary or an assistant secretary either
with or without affixing thereto the corporate seal.
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Section 9.07. Voting of Shares Owned by Corporation. Subject always to
the specific directions of the board of directors, any share(s) of stock issued
by any other corporation and owned or controlled by the corporation may be voted
at any stockholders' meeting of such other corporation by the chairman of the
board, the president of the corporation, if either be present, or in the absence
of the chairman of the board and the president, by any vice president of the
corporation, who may be present. Whenever, in the judgment of the chairman of
the board, the president, or in the absence of the chairman of the board and the
president, of any vice president, it is desirable for the corporation to execute
a proxy or give a stockholder's consent in respect to any share(s) of stock
issued by any other corporation and owned by the corporation, such proxy or
consent shall be executed in the name of the corporation by the chairman of the
board, the president or one of the vice presidents of the corporation and shall
be attested by the secretary or an assistant secretary of the corporation under
the corporate seal without necessity of any authorization by the board of
directors. Any person or persons designated in the manner above stated as the
proxy or proxies of the corporation shall have full right, power and authority
to vote the share(s) of stock issued by such other corporation and owned by the
corporation the same as such share(s) might be voted by the corporation.
Section 9.08. Annual Statement. The board of directors shall present at
each annual meeting, and when called for by the vote of stockholders at any
special meeting of the stockholders, a full and clear statement of the business
and condition of the corporation.
Section 9.09. Fiscal Year. The fiscal year of the corporation shall be
the calendar year unless otherwise fixed by resolution of the board of
directors.
Section 9.10. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the words "Corporate Seal, Delaware" and may have
inscribed thereon the year of the organization. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE X
AMENDMENTS TO BYLAWS
The board of directors, by the affirmative vote of a majority of the
directors, may at any meeting, alter, amend, or repeal any of these bylaws, or
may adopt new bylaws, subject, however, to the right of the stockholders to
repeal or change any such action by the board of directors.
As amended and restated as of March 6, 2003.
/s/ A. Wayne Hennecke
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A. Wayne Hennecke, Secretary
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