EXHIBIT 3
BYLAWS
OF
CARBON ENERGY CORPORATION
(A Colorado Corporation)
Effective as of September 15, 1999
BYLAWS
OF
CARBON ENERGY CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I. Offices.............................................................. 1
1. Business Offices........................................................ 1
2. Principal Office........................................................ 1
3. Registered Office....................................................... 1
ARTICLE II. Shareholders' Meetings.............................................. 1
1. Annual Meetings......................................................... 1
2. Special Meetings........................................................ 2
3. Place of Special Meetings............................................... 2
4. Notice of Meetings...................................................... 3
5. Shareholders' List...................................................... 3
6. Organization............................................................ 4
7. Agenda and Procedure.................................................... 5
8. Quorum.................................................................. 5
9. Adjournment............................................................. 5
10. Voting................................................................. 6
11. Inspectors............................................................. 7
12. Meeting by Telecommunication........................................... 7
ARTICLE III. Board of Directors................................................. 8
1. Authority, Election and Tenure.......................................... 8
2. Number and Qualification................................................ 9
3. Regular Meetings........................................................ 9
4. Special Meetings........................................................ 9
5. Place of Meetings....................................................... 9
6. Notice of Meetings...................................................... 9
7. Quorum and Voting....................................................... 10
8. Organization, Agenda and Procedure...................................... 10
9. Resignation............................................................. 11
10. Removal................................................................ 11
11. Vacancies.............................................................. 11
12. Executive and Other Committees......................................... 12
13. Compensation of Directors.............................................. 13
14. Meeting by Telecommunication........................................... 13
ARTICLE IV. Waiver of Notice by Shareholders and Directors and Action of
Shareholders and Directors by Consent...................................... 14
1. Waiver of Notice........................................................ 14
2. Action Without a Meeting................................................ 15
ARTICLE V. Officers............................................................. 16
1. Election and Tenure..................................................... 16
2. Resignation, Removal and Vacancies........................................ 16
3. Chairman of the Board..................................................... 17
4. President................................................................. 17
5. Vice Presidents........................................................... 17
6. Secretary................................................................. 18
7. Treasurer................................................................. 18
8. Assistant Secretaries and Assistant Treasurers............................ 19
9. Bond of Officers.......................................................... 19
10. Compensation............................................................. 19
ARTICLE VI. Indemnification....................................................... 20
1. Indemnification........................................................... 20
2. Provisions Not Exclusive.................................................. 20
3. Effect of Modification of Act............................................. 21
4. Definitions............................................................... 21
5. Insurance................................................................. 22
6. Expenses as a Witness..................................................... 23
7. Notice to Shareholders.................................................... 23
ARTICLE VII. Execution of Instruments; Loans; Checks and Endorsements;
Deposits; Proxies............................................................ 23
1. Execution of Instruments.................................................. 23
2. Borrowing................................................................. 24
3. Loans to Directors, Officers and Employees................................ 24
4. Checks and Endorsements................................................... 25
5. Deposits.................................................................. 25
6. Proxies................................................................... 25
ARTICLE VIII. Shares of Stock..................................................... 26
1. Certificates of Stock..................................................... 26
2. Shares Without Certificates............................................... 26
3. Record.................................................................... 27
4. Transfer of Stock......................................................... 27
5. Transfer Agents and Registrars; Regulations............................... 27
6. Lost, Destroyed or Mutilated Certificates................................. 28
ARTICLE IX. Corporate Seal........................................................ 28
ARTICLE X. Fiscal Year............................................................ 28
ARTICLE XI. Corporate Records..................................................... 28
1. Corporate Records......................................................... 28
2. Addresses of Shareholders................................................. 29
3. Fixing Record Date........................................................ 29
4. Inspection of Corporate Records........................................... 30
5. Distribution of Financial Statements...................................... 30
6. Audits of Books and Accounts.............................................. 30
ARTICLE XII. Emergency Bylaws and Actions......................................... 30
ARTICLE XIII. Amendments.......................................................... 30
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BYLAWS
OF
Carbon Energy Corporation
(a Colorado Corporation)
ARTICLE I.
Offices
1. Business Offices. The Corporation may have one or more offices at such
place or places within or without the State of Colorado as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
2. Principal Office. The initial principal office of the Corporation
shall be as set forth in the Articles of Incorporation. The Board of Directors,
from time to time, may change the principal office of the Corporation.
3. Registered Office. The registered office of the Corporation shall be
as set forth in the Articles of Incorporation, unless changed as provided by the
provisions of the Colorado Business Corporation Act, as it may be amended from
time to time, or any successor law (the "Act").
ARTICLE II.
Shareholders' Meetings
1. Annual Meetings. The annual meetings of shareholders for the election
of directors to succeed those directors whose terms expire and for the
transaction of such other business as may come before the meeting shall be held
each year at such date, time and place, either within or without the State of
Colorado, as may be designated by resolution of the Board of Directors from time
to time; provided, however, that an
annual meeting shareholders shall be held each year on a date that is within the
earlier of six months after the close of the last fiscal year or fifteen months
after the last annual meeting. If the day so fixed for such annual meeting shall
be a legal holiday at the place of the meeting, then such meeting shall be held
on the next succeeding business day at the same hour.
2. Special Meetings. Special meetings of shareholders for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called at any time by the President or by the Board of
Directors and shall be called by the President or the Secretary upon one or more
written demands (which shall state the purpose or purposes therefor) signed and
dated by the holders of shares representing not less than ten percent of all
votes entitled to be cast on any issue proposed to be considered at the meeting.
The record date for determining the shareholders entitled to demand a special
meeting is the date of the earliest of any of the demands pursuant to which the
meeting is called, or the date that is 60 days before the date on which the
first of such demands is received, whichever is later. Business transacted at
any special meeting of shareholders shall be limited to the purpose or purposes
stated in the notice of such meeting.
3. Place of Special Meetings. Special meetings of shareholders shall be
held at such place or places, within or without the State of Colorado, as may be
determined by the Board of Directors and designated in the notice of the
meeting, or, if no place is so determined and designated in the notice, special
meetings of shareholders shall be held at the principal office of the
Corporation.
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4. Notice of Meetings. Not less than 10 nor more than 60 days prior to
each annual or special meeting of shareholders, written notice of the date, time
and place of each annual and special shareholders' meeting shall be given to
each shareholder entitled to vote at such meeting; provided, however, that if
the authorized shares of the Corporation are proposed to be increased, at least
30 days' notice in like manner shall be given; and provided, further, that if
the Act prescribes notice requirements for particular circumstances (as in the
case of the sale, lease or exchange of the Corporation's assets other than in
the usual and regular course of business, or the merger or dissolution of the
Corporation), the provisions of the Act shall govern. Notice may be given in
person; by telephone, telegraph, teletype, electronically transmitted facsimile,
or other form of wire or wireless communication; and, if so given, shall be
effective when received by the shareholder. Notice may also be given by deposit
in the United States mail, postage prepaid, if addressed to the shareholder at
the address of such shareholder shown in the Corporation's current record of
shareholders, and, of so given, shall be effective when mailed. If three
successive notices mailed to any shareholder in accordance with the provisions
of this Section 4 are returned as undeliverable, no further notices to such
shareholder shall be necessary until another address for such shareholder is
made known to the Corporation. The notice of a special meeting shall, in
addition, state the meeting's purposes.
5. Shareholders' List. A complete record of the shareholders entitled to
notice of any shareholders' meeting (or an adjourned meeting described in
Section 9 of this Article II) shall be prepared by the Secretary of the
Corporation. Such shareholders' list shall be arranged by voting groups and,
within each voting group by class or series of
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shares, shall be alphabetical within each class or series and shall show the
address of, and the number of shares of each such class and series that are held
by, each shareholder. (When used in these Bylaws, the term "voting group" or
"voting groups" shall have the meaning assigned by the Act.) The shareholders'
list shall be available for inspection by any shareholder beginning on the
earlier of ten days before the meeting for which the list was prepared or two
business days after notice is given and continuing through the meeting and any
adjournment thereof at the Corporation's principal office or at a place
identified in the notice of the meeting in the city where the meeting will be
held. A shareholder or his agent or attorney is entitled on written demand to
inspect and, subject to the requirements of the Act, to copy the list during
regular business hours and during the period it is available for inspection.
6. Organization. The Chairman of the Board, if any, or, if there is no
Chairman of the Board or in the Chairman of the Board's absence, the President,
or in the President's absence, any Vice President shall call meetings of
shareholders to order and act as chairperson of such meetings. In the absence
of said officers, any shareholder entitled to vote at the meeting, or any proxy
of any such shareholder, may call the meeting to order and a chairperson shall
be elected by a majority of the votes present and entitled to be cast at the
meeting. The Secretary or any Assistant Secretary of the Corporation or any
person appointed by the chairperson may act as secretary of such meetings.
7. Agenda and Procedure. The Board of Directors shall have the
responsibility of establishing an agenda for each meeting of shareholders,
subject to the rights of shareholders to raise matters, if any, which may
properly be brought before the
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meeting although not included within the agenda. The chairperson shall be
charged with the orderly conduct of all meetings of shareholders.
8. Quorum. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless otherwise provided in the Act or in the
Corporation's Articles of Incorporation a majority of the votes entitled to be
cast on a matter by a voting group constitutes a quorum of that voting group for
action on that matter. In the absence of a quorum at any shareholders' meeting,
a majority of the votes present in person or represented by proxy and entitled
to vote on any matter at the meeting may adjourn the meeting from time to time
for a period not to exceed 120 days from the original date of the meeting
without further notice (except as provided in Section 9 of this Article II)
until a quorum shall be present or represented.
9. Adjournment. When a meeting is for any reason adjourned to another
date, time or place, notice need not be given of the adjourned meeting if the
date, time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for more than 120 days from the date of the original meeting, 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 shareholder as of the new record
date.
10. Voting.
(a) Except as provided by law or in the Articles of Incorporation, at
every meeting of shareholders, or with respect to corporate action which may be
taken
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without a meeting, each outstanding share having voting power is entitled to one
vote, and each fractional share, if any is outstanding, is entitled to a
corresponding fractional vote, on each matter voted on at a shareholders'
meeting.
(b) A shareholder may vote the shareholder's shares in person or by
proxy. A shareholder may appoint a proxy by signing an appointment form, either
personally or by the shareholder's attorney-in-fact. A shareholder may appoint
a proxy by transmitting or authorizing the transmission of a telegram, teletype
or other electronic transmission providing a written statement of the
appointment to the proxy, to a proxy solicitor, proxy support service
organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the Corporation; except that the
transmitted appointment shall set forth or be transmitted with written evidence
from which it can be determined that the shareholder transmitted or authorized
the transmission of the appointment. An appointment of a proxy is not effective
against the Corporation until the appointment is received by the Corporation.
The appointment is effective for eleven months unless a different period is
expressly provided in the appointment form. An appointment of a proxy shall be
revocable by the shareholder except as may be permitted or provided by law.
(c) When a quorum is present at any meeting of shareholders, action on
a matter, other than the election of directors, by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
within the voting group opposing the action, unless the matter is one upon which
a different vote is required by express provision of a statute, or the Articles
of Incorporation, or these
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Bylaws, in which case such express provision shall govern and control the
decision on such matter.
11. Inspectors. The chairperson of the meeting may at any time appoint two
or more inspectors to serve at a meeting of the shareholders. Such inspectors
shall decide upon the qualifications of voters, including the validity of
proxies, accept and count the votes for and against the matters presented,
report the results of such votes, and subscribe and deliver to the secretary of
the meeting a certificate stating the number of shares of stock within each
voting group that is issued and outstanding and entitled to vote thereon and the
number of shares within each voting group that voted for and against the matters
presented. The voting inspectors need not be shareholders of the Corporation,
and any director or officer of the Corporation may be an inspector on any matter
other than a vote for or against such director's or officer's election to any
position with the Corporation or on any other matter in which such officer or
director may be directly interested.
12. Meeting by Telecommunication. If and only if permitted by the Board of
Directors, any or all of the shareholders may participate in an annual or
special shareholders' meeting by, or the meeting may be conducted through the
use of, any means of communication by which all persons participating in the
meeting may hear each other during the meeting. If the Board of Directors
determines to allow shareholders to participate in a shareholders' meeting by
telecommunication, the Board shall establish the terms and conditions under
which shareholders may participate by such means and shall cause the notice of
the meeting to contain such terms and conditions. Only shareholders who comply
with the terms and conditions indicated in such notice shall be entitled to so
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participate by telecommunication in the shareholders' meeting. A shareholder
participating in a meeting by telecommunication in compliance with the terms and
conditions established by the Board of Directors is deemed to be present in
person at the meeting.
ARTICLE III.
Board of Directors
1. Authority, Election and Tenure. All corporate power shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed by, a Board of Directors. The Board of Directors
shall be elected at each annual meeting of shareholders. In an election of
directors, that number of candidates equaling the number of directors to be
elected having the highest number of votes cast in favor of their election shall
be elected to the Board of Directors. The terms of the initial directors of the
Corporation shall expire at the first shareholders' meeting at which directors
are elected. The term of each director who is not an initial director of the
Corporation shall expire at the next annual meeting of shareholders; provided,
however, that a director shall continue to serve, despite the expiration of his
or her term, until such director's successor shall be elected and shall qualify,
or until such director's earlier death, resignation or removal.
2. Number and Qualification. The number of directors shall be fixed from
time to time by resolution of the Board of Directors and may be increased or
decreased from time to time by resolution of the Board of Directors, but no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director.
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Directors must be natural persons at least eighteen years of age but need not be
shareholders or residents of the State of Colorado.
3. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such dates, times and places as may be determined by the Board of
Directors. Regular meetings of the Board of Directors may be held without
notice of the date, time, place or purpose of the meeting.
4. Special Meetings. Special meetings of the Board of Directors may be
called by the President at any time and shall be called by the President or the
Secretary on the written request of any two directors.
5. Place of Meetings. Any meeting of the Board of Directors may be held
at such place or places either within or without the State of Colorado as shall
from time to time be determined by the Board of Directors and as shall be
designated in the resolution of the Board of Directors fixing the date, time and
place of the regular meetings of the Board of Directors or in the notice of
special meeting.
6. Notice of Meetings. Notice of the date, time and place of each special
meeting of directors shall be given to each director at least two days prior to
such meeting. The notice of a special meeting of the Board of Directors need
not state the purposes of the meeting. Notice to each director of any special
meeting may be given in person; by telephone, telegraph, teletype,
electronically transmitted facsimile, or other form of wire or wireless
communication; or by mail or private carrier. Oral notice to a director of any
special meeting is effective when communicated. Written notice to a director of
any special meeting, including without limitation notice sent by electronic
mail, is effective at the earliest of: (a) the date received; (b) five days
after it is deposited
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in the United States mail, properly addressed to the last address for the
director shown on the records of the Corporation, first class postage prepaid;
(c) the date shown on the return receipt if mailed by registered or certified
mail, return receipt requested, postage prepaid, in the United States mail and
if the return receipt is signed by or on behalf of the director to whom the
notice is addressed.
7. Quorum and Voting. A majority of the number of directors fixed by or
in accordance with Section 2 of this Article III shall constitute a quorum at
all meetings of the Board of Directors. 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, except as otherwise required by the Act.
8. Organization, Agenda and Procedure. The of the Board, if any, or, if
there is no Chairman of the Board or in the absence of the Chairman of the
Board, the President, or in the President's absence, any director chosen by a
majority of the directors present, shall act as chairperson of the meetings of
the Board of Directors. The Secretary, any Assistant Secretary, or any other
person appointed by the chairperson shall act as secretary of each meeting of
the Board of Directors. The agenda of and procedure for such meetings shall be
as determined by the Board of Directors.
9. Resignation. Any director of the Corporation may resign at any time
by giving written resignation notice to the Corporation or the Secretary of the
Corporation at the Corporation's principal office. Such resignation shall take
effect at the date of receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it
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effective, unless it so provides. A director who resigns may deliver to the
Secretary of State for filing a statement to that effect.
10. Removal. Any director may be removed, either with or without cause,
at any time, at a special meeting of the shareholders called and held for such
purpose if the number of votes cast in favor of removal exceeds the number of
votes cast against removal; provided, however, that if a director is elected by
a voting group of shareholders, only the shareholders of that voting group may
participate in the vote to remove that director. A vacancy in the Board of
Directors caused by any such removal may be filled by the Corporation's
shareholders at such meeting or, if the shareholders at such meeting shall fail
to fill such vacancy, by the Board of Directors as provided in Section 11 of
this Article III.
11. Vacancies. If a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of directors: (a) the
shareholders may fill the vacancy at the next annual meeting or at a special
meeting called for that purpose; or (b) the Board of Directors may fill the
vacancy; or (c) if the directors remaining in office constitute fewer than a
quorum of the Board of Directors, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office. The term of a
director elected to fill a vacancy pursuant to subparagraph (b) or (c) of the
foregoing sentence expires at the next annual shareholders' meeting. The term
of a director elected to fill a vacancy pursuant to subparagraph (a) of this
Section 11 shall be the unexpired term of such director's predecessor in office;
except that, if the director's predecessor had been elected to fill a vacancy
pursuant to Subparagraph (b) or (c) of this Section 11, the term of a director
elected pursuant to Section (a) of this Section 11 shall
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be the unexpired term of the last predecessor elected by the shareholders. If
the vacant directorship was held by a director elected by a voting group of
shareholders and one or more of the remaining directors were elected by the same
voting group, only such directors are entitled to vote to fill the vacancy if it
is filled by directors, and they may do so by the affirmative vote of a majority
of such directors remaining in office; and only the holders of shares of that
voting group are entitled to vote to fill such vacancy if it is filled by the
shareholders.
12. Executive and Other Committees. Except as otherwise required by the
Act, the Board of Directors, by resolution adopted by the greater of a majority
of the number of directors fixed by or in accordance with Section 2 of this
Article III or the number of directors required to take action pursuant to
Section 7 of this Article III, may designate from among its members an executive
committee and one or more other committees each of which, to the extent provided
in the resolution and except as otherwise prescribed by the Act, shall have and
may exercise all of the authority of the Board of Directors in the management of
the Corporation, except that no committee shall: (a) authorize distributions;
(b) approve or propose to shareholders action that the Act requires to be
approved by shareholders; (c) fill vacancies on the Board of Directors or on any
of its committees; (d) amend the Articles of Incorporation; (e) adopt, amend, or
repeal these Bylaws; (f) approve a plan of merger not requiring shareholder
approval; (g) authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the Board of Directors; or (h) authorize or
approve the issuance or sale of shares, or a contract for the sale of shares, or
determine the designation and relative rights, preferences, and limitations of a
class or series of shares, except that with
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respect to this clause (h) the Board of Directors may authorize a committee to
do so within limits specifically prescribed by the Board of Directors. The
provision of these Bylaws governing meetings, action without meeting, notice,
waiver of notice, and quorum and voting requirements of the Board of Directors
shall apply to committees and the members thereof.
13. Compensation of Directors. Each director may be paid such compensation
as fixed from time to time by resolution of the Board of Directors, together
with reimbursement for the reasonable and necessary expenses incurred by such
director in connection with the performance of such director's duties. Nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity or any of its subsidiaries in any other
capacity and receiving proper compensation therefor.
14. Meeting by Telecommunication. One or more members of the Board of
Directors or any committee designated by the Board of Directors may hold or
participate in a meeting of the Board of Directors or such committee through the
use of any means of communication by which all persons participating can hear
each other at the same time.
ARTICLE IV.
Waiver of Notice by Shareholders and Directors and Action
of Shareholders and Directors by Consent
1. Waiver of Notice. A shareholder may waive any notice required by the
Act or by the Articles of Incorporation or these Bylaws, and a director may
waive any notice of a directors' meeting, whether before or after the date or
time stated in the notice as the date or time when any action will occur or has
occurred. The waiver shall be in
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writing, be signed by the shareholder or director entitled to the notice, and be
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records, but such delivery and filing shall not be conditions of the
effectiveness of the waiver. Attendance of a shareholder at a meeting waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice, and waives objection to consideration of a particular matter at the
meeting that is not within the purpose or purposes described in the meeting
notice unless the shareholder objects to considering the matter when it is
presented. A director's attendance at or participation in a meeting waives any
required notice to him or her of the meeting unless the director, at the
beginning of the meeting or promptly upon his or her later arrival, objects to
holding the meeting or transacting business at the meeting because of lack of
notice or defective notice and does not thereafter vote for or assent to action
taken at the meeting, or if special notice was required of a particular purpose
pursuant to the Act, the director objects to transacting business with respect
to the purpose for which such special notice was required and does not
thereafter vote for or assent to action taken at the meeting with respect to
such purpose.
2. Action Without a Meeting. Any action required or permitted to be taken
at a meeting of the shareholders, directors or members of an executive or other
committee, as applicable, may be taken without a meeting if all shareholders
entitled to vote with respect to such action, or all directors or all members of
an executive or other committee, as the case may be, give written consent to
such action in writing. The record date for determining shareholders entitled
to take action without a meeting is the
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date a writing upon which the action is taken, pursuant to this Section 2 of
Article IV, is first received by the Corporation. Any shareholder who has signed
a writing describing and consenting to action taken pursuant to this Section 2
of this Article IV may revoke such consent by a writing signed by such
shareholder describing the action and stating that the shareholder's prior
consent thereto is revoked, if such writing is received by the Corporation
before the effectiveness of the action. Action taken without a meeting shall be
effective: in the case of an action of shareholders, as of the date the last
writing necessary to effect the action is received by the Corporation unless all
of the writings necessary to effect the action specify another date, which may
be before or after the date the writings are received by the Corporation; and in
the case of directors' action, action is taken when the last director signs a
writing describing the action taken unless before such time the Secretary has
received a written revocation of the consent of any other director, and any
action so taken shall be effective at the time taken unless the directors
specify a different effective date.
ARTICLE V.
Officers
1. Election and Tenure. The officers of the Corporation shall consist of
a Chairman of the Board if the Board of Directors determines that there shall be
such a position, a President, a Secretary and Treasurer, each of whom shall be
appointed annually by the Board of Directors. The Board of Directors may also
designate and appoint such other officers and assistant officers as may be
deemed necessary. The Board of Directors may delegate to any such officer the
power to appoint or remove subordinate officers, agents or employees. Any two or
more offices may be held by the
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same person. Each officer so appointed shall continue in office until a
successor shall be appointed and shall qualify, or until the officer's earlier
death, resignation or removal. Each officer shall be a natural person who is
eighteen years of age or older.
2. Resignation, Removal and Vacancies. Any officer may resign at any time
by giving written notice of resignation to the Board of Directors or the
President. Such resignation shall take effect when the notice is received by the
Corporation unless the notice specifies a later effective date, and acceptance
of the resignation shall not be necessary to render such resignation effective.
Any officer may at any time be removed by the Board of Directors. If any office
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors. An officer appointed to fill a vacancy shall be appointed for the
unexpired term of such officer's predecessor in office and shall continue in
office until a successor shall be elected or appointed and shall qualify, or
until such officer's earlier death, resignation or removal. The appointment of
an officer shall not itself create contract rights in favor of the officer, and
the removal of an officer does not affect the officer's contract rights, if any,
with the Corporation and the resignation of an officer does not affect the
Corporation's contract rights, if any, with the officer.
3. Chairman of the Board. If there shall be a Chairman of the Board, the
Chairman of the Board shall preside at meetings of the Board of Directors and of
the shareholders at which he or she is present, and shall give counsel and
advice to the Board of Directors and the officers of the Corporation on all
subjects concerning the welfare of the Corporation and the conduct of its
business. The Chairman of the Board of Directors shall perform such other duties
as the Board may from time to time determine.
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4. President. The President shall be the chief executive officer of the
Corporation. If there is no Chairman of the Board, or if there is a Chairman of
the Board in the absence of the Chairman of the Board, or if authorized by the
Chairman of the Board, the President shall preside at meetings of the
shareholders. The President shall have general and active management of the
business of the Corporation; shall see that all orders and resolutions of the
Board of Directors are carried into effect; and shall perform all duties as may
from time to time be assigned by the Board of Directors.
5. Vice Presidents. The Vice Presidents, if any, shall perform such
duties and possess such powers as from time to time may be assigned to them by
the Board of Directors or the President. In the absence of the President or in
the event of the inability or refusal of the President to act, the Vice
President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of the election or appointment of the Vice
Presidents) shall perform the duties of the President and when so performing
shall have all the powers of and be subject to all the restrictions upon the
President.
6. Secretary. The Secretary shall perform such duties and shall have such
powers as may from time to time be assigned by the Board of Directors or the
President. In addition, the Secretary shall perform such duties and have such
powers as are incident to the office of Secretary including, without limitation,
the duty and power to give notice of all meetings of shareholders and the Board
of Directors, the preparation and maintenance of minutes of the directors' and
shareholders' meetings and other records and information required to be kept by
the Corporation under Article XI and for
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authenticating records of the Corporation, and to be custodian of the corporate
seal and to affix and attest to the same on documents, the execution of which on
behalf of the Corporation is authorized by these Bylaws or by the action of the
Board of Directors.
7. Treasurer. The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned by the Board of Directors or the
President. In addition, the Treasurer shall perform such duties and have such
powers as are incident to the office of Treasurer including, without limitation,
the duty and power to keep and be responsible for all funds and securities of
the Corporation, to deposit funds of the Corporation in depositories selected in
accordance with these Bylaws, to disburse such funds as ordered by the Board of
Directors, making proper accounts thereof, and to render as required by the
Board of Directors statements of all these transactions taken as Treasurer and
of the financial condition of the Corporation.
8. Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries and Assistant Treasurers, if any, shall perform such duties as shall
be assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors. In the absence, inability or refusal to act
of the Secretary or the Treasurer, the Assistant Secretaries or Assistant
Treasurers, respectively, in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their election or
appointment, shall perform the duties and exercise the powers of the Secretary
or Treasurer, as the case may be.
9. Bond of Officers. The Board of Directors may require any officer to
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for such terms and conditions as
the Board of
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Directors may specify, including without limitation for the faithful performance
of such officer's duties and for the restoration to the Corporation of any
property belonging to the Corporation in such officer's possession or under the
control of such officer.
10. Compensation. Officers of the Corporation shall be entitled to such
salaries, emoluments, compensation or reimbursement as shall be fixed or
authorized from time to time by the Board of Directors.
ARTICLE VI.
Indemnification
1. Indemnification. To the extent permitted or required by the Act and
any other applicable law, if any director or officer of the Corporation is made
a party to or is involved in any proceeding because such person is or was a
director or officer of the Corporation, the Corporation shall (a) indemnify such
person from and against any liability, including but not limited to expenses of
investigation and preparation, expenses in connection with appearance as a
witness, and fees and disbursements of counsel, accountants or other experts,
incurred by such person in such proceeding, and (b) advance to such person
expenses incurred in such proceeding. The Corporation may in its discretion, but
is not obligated in any way to, indemnify and advance expenses to an employee or
agent of the Corporation to the same extent as to a director or officer, and the
Corporation may indemnify an employee, fiduciary, or agent of the Corporation to
a greater extent than expressly permitted herein for officers and directors if
not inconsistent with public policy.
2. Provisions Not Exclusive. The foregoing provisions for indemnification
and advancement of expenses are not exclusive, and the Corporation may at its
discretion
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provide for indemnification or advancement of expenses in a resolution of its
shareholders or directors, in a contract or in its Articles of Incorporation.
3. Effect of Modification of Act. Any repeal or modification of the
foregoing provisions of this Article for indemnification or advancement of
expenses shall not affect adversely any right or protection stated in such
provisions with respect to any act or omission occurring prior to the time of
such repeal or modification. If any provision of this Article or any part
thereof shall be held to be prohibited by or invalid under applicable law, such
provision or part thereof shall be deemed amended to accomplish the objectives
of the provision or part thereof as originally written to the fullest extent
permitted by law, and all other provisions or parts shall remain in full force
and effect.
4. Definitions. As used in this Article, the following terms have the
following meanings:
(a) Act. When used with reference to an act or omission occurring
prior to the effectiveness of any amendment to the Act which occurs after the
effectiveness of the adoption of this Article, the term "Act" shall include such
amendment only to the extent that the amendment permits a corporation to provide
broader indemnification rights than the Act permitted prior to the amendment.
(b) Corporation. The term "Corporation" includes any domestic or
foreign entity that is a predecessor of the Corporation by reason of a merger or
other transaction in which the predecessor's existence ceased upon consummation
of the transaction.
(c) Director or Officer. A "director" or "officer" is an individual
who is or was a director or officer of the Corporation or an individual who,
while a director
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or officer of the Corporation, is or was serving at the Corporation's request as
a director, officer, partner, trustee, employee, fiduciary, or agent of another
domestic or foreign corporation or other person or entity or of an employee
benefit plan. A director or officer is considered to be serving an employee
benefit plan at the Corporation's request if his or her duties to the
Corporation also impose duties on, or otherwise involve services by, the
director or officer to the plan or to participants in or beneficiaries of the
plan. The terms "director" and "officer" include, unless the context requires
otherwise, the estate or personal representative of a director, or officer.
(d) Liability. The term "liability" means the obligation incurred
with respect to a proceeding to pay a judgment, settlement, penalty, fine
(including any excise tax assessed with respect to an employee benefit plan), or
reasonable expenses.
(e) Proceeding. The term "proceeding" means any threatened, pending
or completed action, suit, or proceeding whether civil, criminal, administrative
or investigative, and whether formal or informal.
5. Insurance. The Corporation may purchase and maintain insurance on
behalf of a person who is or was a director, officer, employee, fiduciary, or
agent of the Corporation, or who, while a director, officer, employee,
fiduciary, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary, or
agent of another domestic or foreign corporation or other person or entity or of
an employee benefit plan, against liability asserted against or incurred by the
person in that capacity or arising from his or her status as a director,
officer, employee, fiduciary, or agent, whether or not the Corporation would
have power to indemnify the person against the same liability under the Act. Any
such insurance may
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be procured from any insurance company designated by the Board of Directors,
whether such insurance company is formed under the laws of this state or any
other jurisdiction of the United States or elsewhere, including any insurance
company in which the Corporation has an equity or any other interest through
stock ownership or otherwise.
6. Expenses as a Witness. The Corporation may pay or reimburse expenses
incurred by a director, officer, employee, fiduciary, or agent in connection
with an appearance as a witness in a proceeding at a time when he or she has not
been made a named defendant or respondent in the proceeding.
7. Notice to Shareholders. If the Corporation indemnifies or advances
expenses to a director under this Article in connection with a proceeding by or
in the right of the Corporation, the Corporation shall give written notice of
the indemnification or advance to the shareholders with or before the notice of
the next shareholders' meeting. If the next shareholder action is taken without
a meeting at the instigation of the Board of Directors, such notice shall be
given to the shareholders at or before the time the first shareholder signs a
writing consenting to such action.
ARTICLE VII.
Execution of Instruments; Loans; Checks and Endorsements;
Deposits; Proxies
1. Execution of Instruments. The President or any Vice President shall
have the power to execute and deliver on behalf of and in the name of the
Corporation any instrument requiring the signature of an officer of the
Corporation, except as otherwise provided in these Bylaws or when the execution
and delivery of the instrument shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. Unless authorized
to do so by these Bylaws or by the Board of Directors,
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no officer, agent or employee shall have any power or authority to bind the
Corporation in any way, to pledge its credit or to render it liable pecuniarily
for any purpose or in any amount.
2. Borrowing. No loan shall be contracted on behalf of the Corporation,
and no evidence of indebtedness shall be issued, endorsed or accepted in its
name, unless authorized by the Board of Directors or a committee designated by
the Board of Directors so to act. Such authority may be general or confined to
specific instances. When so authorized, an officer may (a) effect loans at any
time for the Corporation from any bank or other entity and for such loans may
execute and deliver promissory notes or other evidences of indebtedness of the
Corporation; and (b) mortgage, pledge or otherwise encumber any real or personal
property, or any interest therein, owned or held by the Corporation as security
for the payment of any loans or obligation of the Corporation, and to that end
may execute and deliver for the Corporation such instruments as may be necessary
or proper in connection with such transaction.
3. Loans to Directors, Officers and Employees. The Corporation may lend
money to, guarantee the obligations of and otherwise assist directors, officers
and employees of the Corporation, or directors of another corporation of which
the Corporation owns a majority of the voting stock, only upon compliance with
the requirements of the Act.
4. Checks and Endorsements. All checks, drafts or other orders for the
payment of money, obligations, notes or other evidences of indebtedness, bills
of lading, warehouse receipts, trade acceptances and other such instruments
shall be signed or endorsed for the Corporation by such officers or agents of
the Corporation as shall from
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time to time be determined by resolution of the Board of Directors, which
resolution may provide for the use of facsimile signatures.
5. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the Corporation's credit in such banks or other
depositories as shall from time to time be determined by resolution of the Board
of Directors, which resolution may specify the officers or agents of the
Corporation who shall have the power, and the manner in which such power shall
be exercised, to make such deposits and to endorse, assign and deliver for
collection and deposit checks, drafts and other orders for the payment of money
payable to the Corporation or its order.
6. Proxies. Unless otherwise provided by resolution adopted by the Board
of Directors, the President or any Vice President: (a) may from time to time
appoint one or more agents of the Corporation, in the name and on behalf of the
Corporation, (i) to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, association
or other entity whose stock or other securities may be held by the Corporation,
at meetings of the holders of the stock or other securities of such other
corporation, association or other entity, or (ii) to consent in writing to any
action by such other corporation, association or other entity; (b) may instruct
the person so appointed as to the manner of casting such votes or giving such
consent; and (c) may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as may be deemed necessary or proper.
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ARTICLE VIII.
Shares of Stock
1. Certificates of Stock. The shares of the Corporation may but need not
be represented by certificates. Unless the Act or another law expressly provides
otherwise, the fact that the shares are not represented by certificates shall
have no effect on the rights and obligations of shareholders. If the shares are
represented by certificates, such certificates shall be signed either manually
or in facsimile by the President and the Secretary or such other representatives
of the Corporation as are designated by the Board of Directors. If the person
who signed, either manually or in facsimile, a share certificate, no longer
holds office when the certificate is issued, the certificate is nevertheless
valid. Every certificate representing shares issued by the Corporation shall
state the number and class of shares and the designation of the series, if any,
the certificate represents, and shall otherwise be in such form as is required
by law and as the Board of Directors shall prescribe.
2. Shares Without Certificates. The Board of Directors may authorize the
issuance of any class or series of shares of the Corporation without
certificates. Such authorization shall not affect shares already represented by
certificates until they are surrendered to the Corporation. Within a reasonable
time following the issue or transfer of shares without certificates, the
Corporation shall send the shareholder a complete written statement of the
information required on certificates by the Act.
3. Record. A record shall be kept of the names and addresses of the
Corporation's shareholders, in a form that permits preparation of a list of
shareholders that is arranged by voting group and within each voting group by
class or series of
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shares, that is alphabetical within each class or series, and that shows the
addresses of, and the number of shares of each class and series and the date of
issuance of the shares (and in case of cancellation, the date of cancellation)
held by, each shareholder. The person or other entity in whose name shares of
stock stand on the books of the Corporation shall be deemed the owner thereof,
and thus a holder of record of such shares of stock, for all purposes as regards
the Corporation.
4. Transfer of Stock. Transfers of shares of the stock of the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, or by such registered holder's attorney thereunto authorized, and on
the surrender of the certificate or certificates for such shares properly
endorsed.
5. Transfer Agents and Registrars; Regulations. The Board of Directors
may appoint one or more transfer agents or registrars with respect to shares of
the stock of the Corporation. The Board of Directors may make such rules and
regulations as it may deem expedient and as are not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates for
shares of the stock of the Corporation.
6. Lost, Destroyed or Mutilated Certificates. In case of the alleged
loss, destruction or mutilation of a certificate representing stock of the
Corporation, a new certificate may be issued in place thereof, in such manner
and upon such terms and conditions as the Board of Directors may prescribe, and
shall be issued in such situations as required by the Act.
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ARTICLE IX.
Corporate Seal
The corporate seal shall be in the form approved by resolution of the Board
of Directors. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced. The impression of the
seal may be made and attested by either the Secretary or any Assistant Secretary
for the authentication of contracts or other papers requiring the seal.
ARTICLE X.
Fiscal Year
The fiscal year of the Corporation shall be the year established by the
Board of Directors.
ARTICLE XI.
Corporate Records
1. Corporate Records. The Corporation shall comply with the provisions of
the Act regarding maintenance of records and shall keep such records at such
place as the Act may designate or, if the Act does not designate the place for
such records, then at such place or places as may be from time to time
designated by the Board of Directors.
2. Addresses of Shareholders. Each shareholder shall furnish to the
Secretary of the Corporation or the Corporation's transfer agent an address to
which notices from the Corporation, including notices of meetings, may be
directed and if any shareholder shall fail so to designate such an address, it
shall be sufficient for any such
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notice to be directed to such shareholder at such shareholder's address last
known to the Secretary or transfer agent.
3. Fixing Record Date. The Board of Directors may fix in advance a date
as a record date for the determination of the shareholders entitled to a notice
of or to vote at any meeting of shareholders or entitled to receive payment of
any dividend or other distribution or allotment of rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 70 days before the meeting or
action requiring a determination of shareholders; except that the record date
for determining shareholders entitled to take action without a meeting or
entitled to be given notice of action so taken is the date upon which a writing
upon which such action is taken is first received by the Corporation. Only such
shareholders as shall be shareholders of record on the date so fixed shall be so
entitled with respect to the matter to which the same relates. If the Board of
Directors shall not fix a record date as above provided, then the record date
shall be determined in accordance with the Act.
4. Inspection of Corporate Records. Shareholders shall have those rights
to inspect and copy the Corporation's records as provided in the Act.
5. Distribution of Financial Statements. Upon the written request of any
shareholder of the Corporation, the Corporation shall mail to such shareholder
its last annual and most recently published financial statement, if any.
6. Audits of Books and Accounts. The Corporation's books and accounts may
be audited at such times and by such auditors as shall be specified and
designated by resolution of the Board of Directors.
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ARTICLE XII.
Emergency Bylaws and Actions
Subject to repeal or change by action of the shareholders, the Board of
Directors may adopt emergency bylaws and exercise other powers in accordance
with and pursuant to the provisions of the Act.
ARTICLE XIII.
Amendments
Unless the Act, the Articles of Incorporation or a particular Bylaw
reserves the right to amend the Bylaws exclusively to the shareholders, the
Board of Directors may amend or repeal these Bylaws or adopt new bylaws. The
shareholders may also amend or repeal these Bylaws or adopt new bylaws.
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