EXHIBIT 3.2
BYLAWS
OF
PETROGLYPH ENERGY, INC.
EFFECTIVE APRIL 15, 1997
TABLE OF CONTENTS
ARTICLE I
OFFICES ................................................................................. 1
Section 1. Registered Office ..................................................... 1
Section 2. Other Offices ......................................................... 1
ARTICLE II
MEETINGS OF STOCKHOLDERS ................................................................ 1
Section 1. Place of Meeting....................................................... 1
Section 2. Annual Meetings ....................................................... 1
Section 3. Special Meetings ...................................................... 2
Section 4. Notice of Meetings .................................................... 2
Section 5. Quorum ................................................................ 2
Section 6. Adjournments........................................................... 2
Section 7. Order of Business ..................................................... 2
Section 8. List of Stockholders .................................................. 3
Section 9. Voting ................................................................ 3
Section 10. Inspectors of Election................................................. 3
ARTICLE III
BOARD OF DIRECTORS....................................................................... 4
Section 1. General Powers......................................................... 4
Section 2. Number, Qualification and Election .................................... 4
Section 3. Notification of Nominations ........................................... 5
Section 4. Quorum and Manner of Acting ........................................... 5
Section 5. Place of Meeting ...................................................... 5
Section 6. Regular Meetings ...................................................... 5
Section 7. Special Meetings ...................................................... 5
Section 8. Notice of Meetings .................................................... 5
Section 9. Rules and Regulations ................................................. 6
Section 10. Participation in Meeting by Means of Communication Equipment .......... 6
Section 11. Action Without Meeting ................................................ 6
Section 12. Resignations .......................................................... 6
Section 13. Removal of Directors .................................................. 6
Section 14. Vacancies ............................................................. 6
Section 15. Compensation .......................................................... 6
Section 16. Advisory Directors .................................................... 7
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES .......................................................... 7
Section 1. Executive Committee ................................................... 7
Section 2. Other Committees ...................................................... 8
Section 3. Procedure; Meetings; Quorum ........................................... 8
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ARTICLE V
OFFICERS ................................................................................ 8
Section 1. Number; Term of Office ............................................... 8
Section 2. Removal .............................................................. 9
Section 3. Resignation .......................................................... 9
Section 4. Vacancies ............................................................ 9
Section 5. The President ........................................................ 9
Section 6. Chairman of the Board ................................................ 9
Section 7. Vice Presidents ...................................................... 9
Section 8. Treasurer ............................................................ 9
Section 9. Secretary ............................................................ 9
Section 10. Assistant Treasurers and Secretaries ................................. 10
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ............................ 10
Section 1. Mandatory Indemnification ............................................ 10
Section 2. Determination of Indemnification ..................................... 11
Section 3. Advance of Expenses .................................................. 11
Section 4. Permissive Indemnification ........................................... 11
Section 5. Nature of Indemnification ............................................ 11
Section 6. Insurance ............................................................ 11
Section 7. Continuation and Successors .......................................... 12
Section 8. Exclusive Jurisdiction ............................................... 12
ARTICLE VII
CAPITAL STOCK ........................................................................... 12
Section 1. Certificates for Shares .............................................. 12
Section 2. Transfer of Shares ................................................... 13
Section 3. Address of Stockholders .............................................. 13
Section 4. Lost, Destroyed and Mutilated Certificates ........................... 13
Section 5. Regulations .......................................................... 13
Section 6. Fixing Date for Determination of Stockholders of Record .............. 13
ARTICLE VIII
SEAL..................................................................................... 14
ARTICLE IX
FISCAL YEAR ............................................................................. 14
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ARTICLE X
WAIVER OF NOTICE ............................................................................... 14
ARTICLE XI
AMENDMENTS ..................................................................................... 14
ARTICLE XII
MISCELLANEOUS .................................................................................. 15
Section 1. Execution of Documents ...................................................... 15
Section 2. Deposits .................................................................... 15
Section 3. Checks ..................................................................... 15
Section 4. Proxies in Respect of Stock or Other Securities of Other Corporations ....... 15
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BYLAWS
OF
PETROGLYPH ENERGY, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Petroglyph
Energy, Inc. (hereinafter called the "Corporation") in the State of Delaware
shall be at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801 and the registered agent in charge
thereof shall be The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have an office or
offices, and keep the books and records of the Corporation, except as may
otherwise be required by law, at such other place or places, either within or
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 1. Place of Meeting. All meetings of the stockholders of the
Corporation shall be held at the office of the Corporation or at such other
places, within or without the State of Delaware, as may from time to time be
fixed by the Board of Directors, the Chairman of the Board or the President.
Section 2. Annual Meetings. Annual meetings of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before such meetings shall be held during each
calendar year on a date and at such hour as may be fixed by the Board of
Directors, the Chairman of the Board or the President. Failure to designate a
time for the annual meeting or to hold the annual meeting at the designated time
shall not work a dissolution of the Corporation.
In order for business to be properly brought before the meeting by a
stockholder, the business must be legally proper and written notice thereof must
have been filed with the Secretary of the Corporation not less than 60 nor more
than 120 days prior to the meeting. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the proposal as the same
appears in the Corporation's records; (b) the class and number of shares of
stock of the Corporation that are beneficially owned, directly or indirectly, by
such stockholder; and (c) a clear and concise statement of the proposal and the
stockholder's reasons for supporting it.
The filing of a stockholder notice as required above shall not, in and of
itself, constitute the making of the proposal described therein.
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If the chairman of the meeting determines that any proposed business has
not been properly brought before the meeting, he shall declare such business out
of order; and such business shall not be conducted at the meeting.
Section 3. Special Meetings. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of the stockholders for any purpose or purposes may be called only by
(i) the Chairman of the Board, (ii) the President, (iii) a majority of the
entire Board of Directors, or (iv) a majority of the votes entitled to be cast
by the stockholders entitled to vote at such a meeting, or (v) not more
frequently than once during each calendar year, by ten percent of the votes
entitled to be cast by the stockholders entitled to vote at such a meeting.
Only such business as is specified in the notice of any special meeting of the
stockholders shall come before such meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the stockholders, whether annual or special,
shall be given, either by personal delivery or by mail, not less than 10 nor
more than 60 days before the date of the meeting to each stockholder of record
entitled to notice of the meeting. If mailed, such notice shall be deemed given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. Each such notice shall state the place, date and hour of the
meeting, and the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy without protesting, prior to
or at the commencement of the meeting, the lack of proper notice to such
stockholder, or who shall waive notice thereof as provided in Article X of these
Bylaws. Notice of adjournment of a meeting of stockholders need not be given if
the time and place to which it is adjourned are announced at such meeting,
unless the adjournment is for more than 30 days or, after adjournment, a new
record date is fixed for the adjourned meeting.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, the holders of a majority of
the votes entitled to be cast by the stockholders entitled to vote, which if any
vote is to be taken by classes shall mean the holders of a majority of the votes
entitled to be cast by the stockholders of each such class, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at any meeting of the stockholders.
Section 6. Adjournments. In the absence of a quorum, the holders of a
majority of the votes present in person or represented by proxy, may adjourn the
meeting from time to time. At any such adjourned meeting at which a quorum may
be present, any business may be transacted which might have been transacted at
the meeting as originally called.
Section 7. Order of Business. At each meeting of the stockholders, the
Chairman of the Board, or, in the absence of the Chairman of the Board, the
President, shall act as chairman. The order of business at each such meeting
shall be as determined by the chairman of the meeting. The chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all such acts and things as are necessary or desirable
for the proper conduct of the meeting, including, without limitation, the
establishment of procedures for the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting polls. The
chairman of the meeting shall announce at each such meeting the date and time of
the opening and the closing of the voting polls for each matter upon which the
stockholders will vote at such meeting.
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Section 8. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who has charge of the stock ledger to
prepare and make, at least 10 days before each meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in such stockholder's name. Such list shall be produced
and kept available at the times and places required by law.
Section 9. Voting. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, each stockholder of record of
any class or series of stock having a preference over the Common Stock of the
Corporation as to dividends or upon liquidation shall be entitled at each
meeting of stockholders to such number of votes for each share of such stock as
may be fixed in the Certificate of Incorporation or in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of such
stock, and each stockholder of record of Common Stock shall be entitled at each
meeting of stockholders to one vote for each share of such stock, in each case,
registered in such stockholder's name on the books of the Corporation:
(a) on the date fixed pursuant to Section 6 of Article VII of
these Bylaws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the date on which notice of
such meeting is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may
authorize not in excess of three persons to act for such stockholder by a proxy
signed by such stockholder or such stockholder's attorney-in-fact. Any such
proxy shall be delivered to the secretary of such meeting at or prior to the
time designated for holding such meeting but, in any event, not later than the
time designated in the order of business for so delivering such proxies. No
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period.
At each meeting of the stockholders, all corporate actions, other than the
election of directors, to be taken by vote of the stockholders (except as
otherwise required by law and except as otherwise provided in the Certificate of
Incorporation) shall be authorized by a majority of the votes cast by the
stockholders entitled to vote thereon, present in person or represented by
proxy. Where a separate vote by a class or classes is required, the affirmative
vote of the majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class.
Unless required by law or determined by the chairman of the meeting to be
advisable, the vote on any matter, including the election of directors, need not
be by written ballot. In the case of a vote by written ballot, each ballot
shall be signed by the stockholder voting, or by such stockholder's proxy, and
shall state the number of shares voted.
Section 10. Inspectors of Election. Either the Board of Directors or,
in the absence of an appointment of inspectors by the Board, the Chairman of the
Board or the President shall, in advance of each meeting of the stockholders,
appoint one or more inspectors to act at such meeting and make a written report
thereof. In connection with any such appointment, one or more persons may, in
the discretion of the body or person making such appointment, be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at any meeting of stockholders, the chairman of such
meeting shall appoint one or more inspectors to act at such meeting. Each such
inspector shall perform such duties as are required by law and as shall be
specified by the Board, the Chairman of the Board, the President or
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the chairman of the meeting. Each such inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability. Inspectors need not be stockholders. No director or nominee for the
office of director shall be appointed such an inspector.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation of the
Corporation directed or required to be exercised or done by the stockholders.
Section 2. Number, Qualification and Election. Except as otherwise
provided in any resolution or resolutions adopted by the Board of Directors
pursuant to the provisions of Article FOURTH of the Certificate of Incorporation
of the Corporation relating to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation, the number of directors of the Corporation shall be fixed from time
to time by resolution adopted by vote of a majority of the entire Board of
Directors, provided that the number so fixed shall not be less than four nor
more than nine.
At each annual meeting of stockholders, the stockholders shall elect
directors to hold office until the next succeeding annual meeting. At each
election, the persons receiving the greatest number of votes shall be the
directors. The directors, other than those who may be elected by the holders of
shares of any class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation pursuant to the terms of any resolution or
resolutions providing for the issuance of such stock adopted by the Board, shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal.
Each director elected shall hold office for the term for which he is
elected and until his successor shall have been elected and qualified or until
his earlier death, resignation, retirement, disqualification or removal.
Each director shall be at least 21 years of age. Directors need not be
stockholders of the Corporation.
Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
at each annual meeting of the stockholders, all directors of the Corporation
shall be elected.
Section 3. Notification of Nominations. Subject to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Any stockholder entitled to vote for the
election of directors at a meeting may nominate persons for election as
directors only if written notice of such stockholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i) with
respect to an election to be held at an annual meeting of stockholders, 90 days
in advance of such meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, the close of
business on the seventh day following the
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date on which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The chairman of the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the foregoing
procedure.
Section 4. Quorum and Manner of Acting. Except as otherwise provided
by law, the Certificate of Incorporation of the Corporation or these Bylaws, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business at any meeting of the Board, and, except as so provided,
the vote of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the Board. In the absence of a quorum, a
majority of the directors present may adjourn the meeting to another time and
place. At any adjourned meeting at which a quorum is present, any business that
might have been transacted at the meeting as originally called may be
transacted.
Section 5. Place of Meeting. The Board of Directors may hold its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time determine or as shall be specified or fixed in the
respective notices or waivers of notice thereof.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board shall from time to
time by resolution determine. If any day fixed for a regular meeting shall be a
legal holiday under the laws of the place where the meeting is to be held, the
meeting that would otherwise be held on that day shall be held at the same hour
on the next succeeding business day.
Section 7. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board or the
President or by a majority of the directors.
Section 8. Notice of Meetings. Notice of regular meetings of the Board
of Directors or of any adjourned meeting thereof need not be given. Notice of
each special meeting of the Board shall be mailed or transmitted by delivery
service to each director, addressed to such director at such director's
residence or usual place of business, at least two days before the day on which
the meeting is to be held or shall be sent to such director at such place by
telegraph or facsimile telecommunication or be given personally or by telephone,
not later than the day before the meeting is to be held, but notice need not be
given to any director who shall, either before or after the meeting, submit a
signed waiver of such notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to such
director. Every such notice shall state the time and place but need not state
the purpose of the meeting.
Section 9. Rules and Regulations. The Board of Directors may adopt
such rules and regulations not inconsistent with the provisions of law, the
Certificate of Incorporation of the Corporation or these Bylaws for the conduct
of its meetings and management of the affairs of the Corporation as the Board
may deem proper.
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Section 10. Participation in Meeting by Means of Communication
Equipment. Any one or more members of the Board of Directors or any committee
thereof may participate in any meeting of the Board or of any such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 11. Action Without Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if all of the members of the Board or of any such
committee consent thereto in writing and the writing or writings are filed with
the minutes of proceedings of the Board or of such committee.
Section 12. Resignations. Any director of the Corporation may at any
time resign by giving written notice to the Board of Directors, the Chairman of
the Board, the President or the Secretary of the Corporation. Such resignation
shall take effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 13. Removal of Directors. Any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors, except that if
less than the entire board is to be removed, no director may be removed without
cause if the votes cast against that director's removal would be sufficient to
elect such director if then cumulatively voted at an election of the entire
board.
Section 14. Vacancies. Subject to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, any vacancies on the Board of Directors and any
newly created directorship resulting from an increase in the authorized number
of directors, may be filled by election at an annual or special meeting of
stockholders called for that purpose or by the affirmative vote of a majority of
the remaining directors, though less than a quorum of the entire Board, and the
directors so chosen shall hold office until the next annual meeting of
stockholders and until their successors are duly elected and shall qualify,
unless sooner displaced.
Section 15. Compensation. Each director who shall not at the time also
be a salaried officer or employee of the Corporation or any of its subsidiaries
(hereinafter referred to as an "outside director"), in consideration of such
person serving as a director, shall be entitled to receive from the Corporation
$5,000 per annum and any fees for attendance at meetings of the Board of
Directors or of committees of the Board, or both, as the Board may from time to
time determine. In addition, each director, whether or not an outside director,
shall be entitled to receive from the Corporation reimbursement for the
reasonable expenses incurred by such person in connection with the performance
of such person's duties as a director. Nothing contained in this Section 15
shall preclude any director from serving the Corporation or any of its
subsidiaries in any other capacity and receiving proper compensation therefor.
Section 16. Advisory Directors. The Board of Directors may appoint one
or more advisory directors as it shall from time to time determine. Each
advisory director appointed shall hold office at the pleasure of the Board of
Directors. An advisory director shall be entitled, but shall have no
obligation, to attend and be present at the meetings of the Board of Directors,
although a meeting of the Board of Directors may be held without notice to any
advisory director and no advisory director shall be considered in determining
whether a quorum of the Board of Directors is present. An advisory director
shall advise and counsel the Board of Directors on the business and operations
of the Corporation as requested by the Board of Directors; however, an advisory
director shall not be entitled to vote on any matter presented to the Board
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of Directors. An advisory director, in consideration of such person serving as
an advisory director, shall be entitled to receive from the Corporation such
fees for attendance at meetings of the Board of Directors as the Board shall
from time to time determine. In addition, an advisory director shall be entitled
to receive from the Corporation reimbursement for the reasonable expenses
incurred by such person in connection with the performance of such person's
duties as an advisory director.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive Committee. The Board of Directors may, by
resolution adopted by (i) a majority of the entire Board of Directors if members
of Natural Gas Partners constitute a majority of the Board, or (ii) an 80% vote
of the entire Board if members of Natural Gas Partners constitute less than a
majority of the Board, designate annually three or more of its members to
constitute members or alternate members of an Executive Committee, which
Committee shall have and may exercise, between meetings of the Board, all the
powers and authority of the Board in the management of the business affairs of
the Corporation, including, if such Committee is so empowered and authorized by
resolution adopted by a majority of the entire Board, the power and authority to
declare a dividend and to authorize the issuance of stock, and may authorize the
seal of the Corporation to be affixed to all papers that may require it, except
that the Executive Committee shall not have such power or authority in reference
to:
(a) amending the Certificate of Incorporation of the
Corporation;
(b) adopting an agreement of merger or consolidation involving
the Corporation;
(c) recommending to the stockholders the sale, lease or exchange
of all or substantially all of the property and assets of the Corporation;
(d) recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution;
(e) adopting, amending or repealing any Bylaw;
(f) filling vacancies on the Board or on any committee of the
Board of Directors, including the Executive Committee; or
(g) amending or repealing any resolution of the Board which by
its terms may be amended or repealed only by the Board.
The Board shall have power at any time to change the membership of the Executive
Committee, to fill all vacancies in it and to discharge it, either with or
without cause, by resolution adopted by (i) a majority of the entire Board of
Directors if members of Natural Gas Partners constitute a majority of the Board,
or (ii) an 80% vote of the entire Board if members of Natural Gas Partners
constitute less than a majority of the Board.
Section 2. Other Committees. The Board of Directors may, by resolution
adopted by a majority of the entire Board, designate from among its members one
or more other committees, each of which shall, except as otherwise prescribed by
law, have such authority of the Board as may be specified in the resolution of
the Board designating such committee. A majority of all the members of such
committee may determine
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its action and fix the time and place of its meetings, unless the Board shall
otherwise provide. The Board shall have power at any time to change the
membership of, to fill all vacancies in and to discharge any such committee,
either with or without cause.
Section 3. Procedure; Meetings; Quorum. Regular meetings of the
Executive Committee or any other committee of the Board of Directors, of which
no notice shall be necessary, may be held at such times and places as shall be
fixed by resolution adopted by a majority of the members thereof. Special
meetings of the Executive Committee or any other committee of the Board shall be
called at the request of any member thereof. Notice of each special meeting of
the Executive Committee or any other committee of the Board shall be sent by
mail, delivery service, facsimile telecommunication, telegraph or telephone, or
be delivered personally to each member thereof not later than the day before the
day on which the meeting is to be held, but notice need not be given to any
member who shall, either before or after the meeting, submit a signed waiver of
such notice or who shall attend such meeting without protesting, prior to or at
its commencement, the lack of such notice to such member. Any special meeting
of the Executive Committee or any other committee of the Board shall be a legal
meeting without any notice thereof having been given, if all the members thereof
shall be present thereat. Notice of any adjourned meeting of any committee of
the Board need not be given. The Executive Committee or any other committee of
the Board may adopt such rules and regulations not inconsistent with the
provisions of law, the Certificate of Incorporation of the Corporation or these
Bylaws for the conduct of its meetings as the Executive Committee or any other
committee of the Board may deem proper. A majority of the Executive Committee
or any other committee of the Board shall constitute a quorum for the
transaction of business at any meeting, and the vote of a majority of the
members thereof present at any meeting at which a quorum is present shall be the
act of such committee. The Executive Committee or any other committee of the
Board of Directors shall keep written minutes of its proceedings and shall
report on such proceedings to the Board.
ARTICLE V
OFFICERS
Section 1. Number; Term of Office. The officers of the Corporation
shall be a Chairman of the Board, a President, one or more Vice Presidents, a
Treasurer, a Secretary and such other officers or agents with such titles and
such duties as the Board of Directors may from time to time determine, each to
have such authority, functions or duties as in these Bylaws provided or as the
Board may from time to time determine, and each to hold office for such term as
may be prescribed by the Board and until such person's successor shall have been
chosen and shall qualify, or until such person's death or resignation, or until
such person's removal in the manner hereinafter provided. The Chairman of the
Board and the President shall be elected from among the directors. One person
may hold the offices and perform the duties of any two or more of said officers;
provided, however, that no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by law, the
Certificate of Incorporation of the Corporation or these Bylaws to be executed,
acknowledged or verified by two or more officers. The Board may from time to
time authorize any officer to appoint and remove any such other officers and
agents and to prescribe their powers and duties. The Board may require any
officer or agent to give security for the faithful performance of such person's
duties.
Section 2. Removal. Any officer may be removed, either with or without
cause, by the Board of Directors at any meeting thereof called for that purpose,
or, except in the case of any officer elected by the Board, by any committee or
superior officer upon whom such power may be conferred by the Board.
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Section 3. Resignation. Any officer may resign at any time by giving
notice to the Board of Directors, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later date specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term in the manner prescribed in these Bylaws for election to such
office.
Section 5. The President. The President shall be the chief executive
officer of the Corporation and as such shall have general supervision and
direction of the business and affairs of the Corporation, subject to the control
of the Board of Directors. The President shall, if present and in the absence
of the Chairman of the Board, preside at meetings of the stockholders, meetings
of the Board and meetings of the Executive Committee. The President shall
perform such other duties as the Board may from time to time determine. The
President may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts or other instruments authorized by the Board or any committee
thereof empowered to authorize the same.
Section 6. Chairman of the Board. The Chairman of the Board shall, if
present, preside at meetings of the stockholders, meetings of the Board and
meetings of the Executive Committee. The Chairman of the Board shall counsel
with and advise the President and perform such other duties as the President or
the Board or the Executive Committee may from time to time determine.
Section 7. Vice Presidents. Each Vice President shall have such powers
and duties as shall be prescribed by the President, the Chairman of the Board or
the Board of Directors. Any Vice President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board or any committee thereof empowered to authorize the
same.
Section 8. Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall perform all duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to the
Treasurer by the President, the Chairman of the Board or the Board of Directors.
Section 9. Secretary. It shall be the duty of the Secretary to act as
secretary at all meetings of the Board of Directors, of the Executive Committee
and of the stockholders and to record the proceedings of such meetings in a book
or books to be kept for that purpose; the Secretary shall see that all notices
required to be given by the Corporation are duly given and served; the Secretary
shall be custodian of the seal of the Corporation and shall affix the seal or
cause it to be affixed to all certificates of stock of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized in accordance with the
provisions of these Bylaws. The Secretary shall have charge of the stock ledger
and also of the other books, records and papers of the Corporation and shall see
that the reports, statements and other documents required by law are properly
kept and filed; and the Secretary shall in general perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to such person by the President, the Chairman of the Board or
the Board of Directors.
Section 10. Assistant Treasurers and Secretaries. The Assistant
Treasurers and the Assistant Secretaries shall perform such duties as shall be
assigned to them by the Treasurer, Secretary or Controller, respectively, or by
the President, the Chairman of the Board or the Board of Directors.
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ARTICLE VI
INDEMNIFICATION
Section 1. Mandatory Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, claim, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (a "Proceeding"), by reason of the
fact that such individual is or was a director or officer of the Corporation, or
while a director or officer of the Corporation is or was serving at the request
of the Corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another corporation,
partnership, trust, employee benefit plan or other enterprise, shall be
indemnified and held harmless by the Corporation from and against any judgments,
penalties (including excise taxes), fines, amounts paid in settlement and
reasonable expenses (including court costs and attorneys' fees) actually
incurred by such person in connection with such Proceeding if it is determined
that such person acted in good faith and reasonably believed (i) in the case of
conduct in his official capacity on behalf of the Corporation that his conduct
was in the Corporation's best interests, (ii) in all other cases, that his
conduct was not opposed to the best interests of the Corporation, and (iii) with
respect to any Proceeding which is a criminal action, that he had no reasonable
cause to believe his conduct was unlawful; provided, however, that in the event
a determination is made that such person is liable to the Corporation, no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
except and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of Delaware or such other court shall deem
proper. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself be determinative of whether the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any Proceeding which is a
criminal action, had reasonable cause to believe that his conduct was unlawful.
A person shall be deemed to have been found liable in respect of any claim,
issue or matter only after the person shall have been so adjudged by a court of
competent jurisdiction after exhaustion of all appeals therefrom.
Section 2. Determination of Indemnification. Any indemnification under
the foregoing Section 1 of this Article (unless ordered by a court of competent
jurisdiction) shall be made by the Corporation only upon a determination that
indemnification of such person is proper in the circumstances by virtue of the
fact that it shall have been determined that such person has met the applicable
standards of conduct. Such determination shall be made (1) by a majority vote
of a quorum consisting of directors who at the time of the vote are not named
defendants or respondents in the Proceeding; (2) if such quorum cannot be
obtained, by a majority vote of a committee of the Board of Directors,
designated to act in the matter by a majority of all directors, consisting of
two or more directors who at the time of the vote are not named defendants or
respondents in the Proceeding; (3) by special legal counsel (in a written
opinion) selected by the Board of Directors or a committee of the Board by a
vote as set forth in Subsection (1) or (2) of this Section, or, if such quorum
cannot be established, by a majority vote of all directors (in which Directors
who are named defendants or respondents in the Proceeding may participate); or
(4) by the stockholders of the Corporation in a vote that excludes the shares
held by directors who are named defendants or respondents in the Proceeding.
Section 3. Advance of Expenses. Reasonable expenses, including court
costs and attorneys' fees, incurred by a person who was or is a witness or who
was or is named as a defendant or respondent or was or is otherwise involved in
a Proceeding, by reason of the fact that such individual is or was a director
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or officer of the Corporation, or while a director or officer of the Corporation
is or was serving at the request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another corporation, partnership, trust, employee benefit plan or other
enterprise, shall be paid by the Corporation at reasonable intervals in advance
of the final disposition of such Proceeding, and without the determination set
forth in Section 2 of this Article upon receipt by the Corporation of a written
affirmation by such person of his good faith belief that he has met the standard
of conduct necessary for indemnification under this Article VI, and a written
undertaking by or on behalf of such person to repay the amount paid or
reimbursed by the Corporation if it is ultimately determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
Seventh. Such written undertaking shall be an unlimited obligation of such
person and it may be accepted without reference to financial ability to make
repayment.
Section 4. Permissive Indemnification. The Board of Directors of the
Corporation may authorize the Corporation to indemnify employees or agents of
the Corporation, and to advance the reasonable expenses of such persons, to the
same extent, following the same determinations and upon the same conditions as
are required for the indemnification of and advancement of expenses to directors
and officers of the Corporation.
Section 5. Nature of Indemnification. The indemnification and
advancement of expenses provided hereunder shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under the
Certificate of Incorporation, these Bylaws, any agreement, vote of stockholders
or disinterested directors or otherwise, both as to actions taken in an official
capacity and as to actions taken in any other capacity while holding such
office, shall continue as to a person who has ceased to be a director, officer,
employee or agent of the Corporation and shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 6. Insurance. The Corporation shall have the power and
authority to purchase and maintain insurance or another arrangement on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise, against any liability, claim, damage, loss or risk asserted against
such person and incurred by such person in any such capacity or arising out of
the status of such person as such, irrespective of whether the Corporation would
have the power to indemnify and hold such person harmless against such liability
under the provisions hereof. If the insurance or other arrangement is with a
person or entity that is not regularly engaged in the business of providing
insurance coverage, the insurance or arrangement may provide for payment of a
liability with respect to which the Corporation would not have the power to
indemnify the person only if including coverage for the additional liability has
been approved by the stockholders of the Corporation. Without limiting the power
of the Corporation to procure or maintain any kind of insurance or other
arrangement, the Corporation may, for the benefit of persons indemnified by the
Corporation, (1) create a trust fund; (2) establish any form of self-insurance;
(3) secure its indemnity obligation by grant of a security interest or other
lien on the assets of the Corporation; or (4) establish a letter of credit,
guaranty, or surety arrangement. The insurance or other arrangement may be
procured, maintained, or established within the Corporation or with any insurer
or other person deemed appropriate by the Board of Directors regardless of
whether all or part of the stock or other securities of the insurer or other
person are owned in whole or part by the Corporation. In the absence of fraud,
the judgment of the Board of Directors as to the terms and conditions of the
insurance or other arrangement and the identity of the insurer or other person
participating in the arrangement shall be conclusive and the insurance or
arrangement shall not be voidable and shall not subject the Directors approving
the insurance or arrangement to liability, on any ground,
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regardless of whether the Directors participating in the approval is a
beneficiary of the insurance or arrangement.
Section 7. Continuation and Successors. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VI
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 8. Exclusive Jurisdiction. The Delaware Court of Chancery is
vested with exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this Article VI or
under any statute, agreement, vote of stockholders or disinterested directors,
or otherwise. The Delaware Court of Chancery may summarily determine the
Corporation's obligation to advance expenses (including attorneys' fees).
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates for Shares. Certificates representing shares
of stock of each class of the Corporation, whenever authorized by the Board of
Directors, shall be in such form as shall be approved by the Board. The
certificates representing shares of stock of each class shall be signed by, or
in the name of, the Corporation by the Chairman of the Board or the President or
a Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer of the Corporation, and sealed with the seal of the
Corporation, which may be by a facsimile thereof. Any or all such signatures
may be facsimiles if countersigned by a transfer agent or registrar. Although
any officer, transfer agent or registrar whose manual or facsimile signature is
affixed to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has been issued, it may nevertheless be issued
by the Corporation with the same effect as if such officer, transfer agent or
registrar were still such at the date of its issue.
The stock ledger and blank share certificates shall be kept by the
Secretary or by a transfer agent or by a registrar or by any other officer or
agent designated by the Board.
Section 2. Transfer of Shares. Transfer of shares of stock of each
class of the Corporation shall be made only on the books of the Corporation by
the holder thereof, or by such holder's attorney thereunto authorized by a power
of attorney duly executed and filed with the Secretary of the Corporation or a
transfer agent for such stock, if any, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. The person in whose
name shares stand on the books of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation; provided, however, that
whenever any transfer of shares shall be made for collateral security and not
absolutely, and written notice thereof shall be given to the Secretary or to
such transfer agent, such fact shall be stated in the entry of the transfer. No
transfer of shares shall be valid as against the Corporation, its stockholders
and creditors for any purpose, except to render the transferee liable for the
debts of the Corporation to the extent provided by law, until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
Section 3. Address of Stockholders. Each stockholder shall designate
to the Secretary or transfer agent of the Corporation an address at which
notices of meetings and all other corporate notices may be served or mailed to
such person, and, if any stockholder shall fail to designate such address,
corporate
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notices may be served upon such person by mail directed to such person at such
person's post office address, if any, as the same appears on the share record
books of the Corporation or at such person's last known post office address.
Section 4. Lost, Destroyed and Mutilated Certificates. The holder of
any share of stock of the Corporation shall immediately notify the Corporation
of any loss, theft, destruction or mutilation of the certificate therefor; the
Corporation may issue to such holder a new certificate or certificates for
shares, upon the surrender of the mutilated certificate or, in the case of loss,
theft or destruction of the certificate, upon satisfactory proof of such loss,
theft or destruction; the Board of Directors, or a committee designated thereby,
or the transfer agents and registrars for the stock, may, in their discretion,
require the owner of the lost, stolen or destroyed certificate, or such person's
legal representative, to give the Corporation a bond in such sum and with such
surety or sureties as they may direct to indemnify the Corporation and said
transfer agents and registrars against any claim that may be made on account of
the alleged loss, theft or destruction of any such certificate or the issuance
of such new certificate.
Section 5. Regulations. The Board of Directors may make such
additional rules and regulations as it may deem expedient concerning the issue
and transfer of certificates representing shares of stock of each class of the
Corporation and may make such rules and take such action as it may deem
expedient concerning the issue of certificates in lieu of certificates claimed
to have been lost, destroyed, stolen or mutilated.
Section 6. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to any
other action. A determination of stockholders entitled to notice of or to vote
at a meeting of the stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE VIII
SEAL
The Board of Directors shall provide a corporate seal, which shall be in
the form of a circle and shall bear the full name of the Corporation and the
words and figures "Corporate Seal 1997 Delaware", or such other words or figures
as the Board of Directors may approve and adopt. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
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ARTICLE X
WAIVER OF NOTICE
Whenever any notice whatsoever is required to be given by these Bylaws, by
the Certificate of Incorporation of the Corporation or by law, the person
entitled thereto may, either before or after the meeting or other matter in
respect of which such notice is to be given, waive such notice in writing, which
writing shall be filed with or entered upon the records of the meeting or the
records kept with respect to such other matter, as the case may be, and in such
event such notice need not be given to such person and such waiver shall be
deemed equivalent to such notice.
ARTICLE XI
AMENDMENTS
Any Bylaw (including this Article XI) may be adopted, repealed, altered or
amended at any meeting of the Board of Directors by the affirmative vote of at
least eighty percent of the entire Board of Directors, provided that such
proposed action in respect thereof shall be stated in the notice of such
meeting. The stockholders of the Corporation shall have the power to adopt,
repeal, alter or amend any provision of these Bylaws only to the extent and in
the manner provided in the Certificate of Incorporation of the Corporation.
ARTICLE XII
MISCELLANEOUS
Section 1. Execution of Documents. The Board of Directors or any
committee thereof shall designate the officers, employees and agents of the
Corporation who shall have power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, notes, checks, drafts and other orders for the
payment of money and other documents for and in the name of the Corporation and
may authorize such officers, employees and agents to delegate such power
(including authority to redelegate) by written instrument to other officers,
employees or agents of the Corporation. Such delegation may be by resolution or
otherwise and the authority granted shall be general or confined to specific
matters, all as the Board or any such committee may determine. In the absence
of such designation referred to in the first sentence of this Section 1, the
officers of the Corporation shall have such power so referred to, to the extent
incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board of Directors or any committee thereof or any officer
of the Corporation to whom power in that respect shall have been delegated by
the Board or any such committee shall select.
Section 3. Checks. All checks, drafts and other orders for the payment
of money out of the funds of the Corporation, and all notes or other evidence of
indebtedness of the Corporation, shall be signed
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on behalf of the Corporation in such manner as shall from time to time be
determined by resolution of the Board of Directors or of any committee thereof.
Section 4. Proxies in Respect of Stock or Other Securities of Other
Corporations. The Board of Directors or any committee thereof shall designate
the officers of the Corporation who shall have authority from time to time to
appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights that the Corporation may have as
the holder of stock or other securities in any other corporation, and to vote or
consent in respect of such stock or securities; such designated officers may
instruct the person or persons so appointed as to the manner of exercising such
powers and rights; and such designated officers may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, such written proxies, powers of attorney or other
instruments as they may deem necessary or proper in order that the Corporation
may exercise its said powers and rights.
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