AMENDED AND RESTATED
UNITED PETROLEUM
CORPORATION
BYLAWS
ADOPTED AS OF NOVEMBER 12, 1999
UNITED PETROLEUM CORPORATION
BYLAWS
BYLAWS
OF
UNITED PETROLEUM CORPORATION
ARTICLE I. OFFICES
Section 1. Registered Office. The address of the registered office of
the corporation in the State of Delaware shall be 1013 Centre Road, Wilmington,
County of New Castle, State of Delaware 19805, and the registered agent at such
address in charge thereof shall be The Prentice-Hall Corporation System, Inc.,
all of which shall be subject to change from time to time as permitted by law.
Section 2. Other Offices. The corporation may also have an office or
offices or place or places of business within or without the State of Delaware
as the board of directors may from time to time designate.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of stockholders for the
election of directors and for the purpose of transacting such other proper
business shall be held within or without the State of Delaware on such date and
at such time and place as may be designated by resolution of the board of
directors from time to time.
Section 2. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called at any time (i) by the board of directors,
(ii) by a committee of the board of directors whose power and authority, either
as expressly provided in the resolution of the board of directors, or as may be
provided in these bylaws, includes the power to call such meetings or (iii) upon
the request to the board of directors in writing of stockholders of record
holding a majority of votes which could be cast by the holders of all
outstanding shares having the right to vote at such meeting.
Section 3. Time and Place of Special Meetings. Special meetings of the
stockholders shall be held at such times and at such places, within or without
the State of Delaware, as may from time to time be designated by the board of
directors, with regard to special meetings called by it or called upon the
request of stockholders, or as may be otherwise designated by the committee
calling such meeting.
Section 4. Notice. Written notice of all stockholders' meetings,
stating the place, date and hour thereof, and the purpose or purposes thereof,
shall be given to each stockholder of record entitled to notice of or to vote at
such meeting. If mailed, such notice shall be deemed to have been given when
deposited in the United States mails, postage prepaid, addressed to the
stockholder at his address as it appears on the records of the corporation.
Section 5. Quorum. Except as may otherwise be provided by law, the
certificate of incorporation or these bylaws, the presence, in person or by
proxy, at each meeting of stockholders, of the holders of shares of stock having
a majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall constitute a quorum, but,
in the absence of a quorum and until a quorum is secured, either the chairman of
the meeting or a majority of the votes cast at the meeting by holders who are
present, in person or by proxy, may adjourn the meeting, from time to time,
without further notice if the time and place of the adjourned meeting are
announced at the meeting at which the adjournment is taken.
Section 6. Adjournment. Any meeting of stockholders may be adjourned at
the meeting from time to time, either by the chairman of the meeting, for an
announced proper purpose, or by the stockholders, for any reason, to reconvene
at a later time and at the same or some other place, and, unless otherwise
provided by law, notice need not be given of any such adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the stockholders may transact any business
which might have been transacted at the original meeting. If a quorum is present
at any meeting, any adjournment of such meeting by the chairman of the meeting
may be overruled by the vote of the holders of shares of stock having a majority
of the votes which could be cast by the holders of all outstanding shares of
stock entitled to vote thereon which are present in person or by proxy at the
meeting.
Section 7. Organization of Meetings. Meetings of stockholders shall be
presided over by the chairman of the meeting who shall be the Chairman of the
board, if any, or in his absence, the President, if any, or Chief Executive
Officer, or in his absence, by a Vice President, or in the absence of the
foregoing persons or persons with functionally equivalent executive titles, by
the person so designated by the board of directors or in the absence of any such
designation, by a chairman chosen by the stockholders at the meeting. The
Secretary, if any, shall act as secretary of the meeting, but in his absence,
the chairman of the meeting shall appoint a secretary of the meeting.
Section 8. Voting and Record Date. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote shall, at every
meeting of the stockholders, be entitled to one vote, in person or by proxy, for
each share of voting stock held by him, but no proxy shall be voted on after
three years from its date, unless it provides for a longer period. A stockholder
may revoke any proxy which is not irrevocable by attending the meeting and
voting in person or by tendering to the corporation at or before the meeting
either an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date. Voting at meetings need not be by written ballot and
need not be conducted by inspectors of election unless otherwise required by law
(e.g., 8 Del. C. Section 231) as prescribed in accordance with Section 9 of this
Article II. At all meetings of stockholders for the election of directors, a
plurality of the votes cast shall be sufficient to elect directors. Unless
otherwise provided by law, the certificate of incorporation or these bylaws, all
other elections and matters shall be determined by the vote of the holders of
record of outstanding shares of stock comprising a majority of the votes which
could be cast and which are present at the meeting, in person or by proxy, and
entitled to vote at such meeting. The fixing of a record date for the
determination of stockholders entitled to vote shall be as provided by law.
Section 9. Conduct of Meeting. Subject to and to the extent permitted
by Delaware law, the board of directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with law or such rules and regulations as adopted by the board of directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the board of
directors or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting and announcement of the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; (v) limitations on the time allotted to
questions or comments by participants; and (vi) appointment of inspectors of
election and other voting procedures, including, without limitation, those
procedures set out in 8 Del. C. Section 231. Unless and to the extent determined
by the board of directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 10. Action Without Meeting. Any action permitted or required to
be taken at any meeting of shareholders may be taken by written consent without
a meeting subject to and to the extent permitted by applicable Delaware law.
ARTICLE III. DIRECTORS
Section 1. Number. The entire board of directors shall initially
consist of five (5) directors and, thereafter, from time to time, such number as
shall be established by resolution of the board of directors; provided, however,
that the number of directors shall be increased to seven (7) directors in the
event that the Corporation shall fail to pay dividends on its Class A Preferred
Stock for eight (8) consecutive full quarter-annual periods as specified in the
Certificate of Designation filed by the Corporation with the Office of the
Secretary of State of the State of Delaware on August __, 1999 (the "Certificate
of Designation"). The two (2) additional directors added upon the failure of the
conditions set forth in the Certificate of Designation are herein referred to as
the "Default Directors."
Section 2. Term, Qualification, Vacancies and Newly Created
Directorships. The directors shall hold office until the next annual election
and until their successors are elected and qualify or until their earlier
resignation or removal. Directors need not be stockholders. Directors shall be
elected by a plurality of votes cast at a meeting of the stockholders, except
that if there be a vacancy in the board by reason of death, resignation or
otherwise, or if there be any newly created directorships resulting from an
increase in the authorized number of directors, such vacancy or directorship
shall be filled by a majority of the directors then in office, although less
than a quorum; provided, however, that the Default Directors, if any, shall be
elected solely by a plurality of votes cast at a meeting of the holders of the
Class A 9% Non-Voting Preferred Stock of the Corporation and any vacancy arising
with respect to a Default Director shall be filled by a plurality vote of the
Class A 9% Non-Voting Preferred Stock of the Corporation. Any director chosen by
reason of such vacancy or such newly created directorship shall hold office
until the next annual meeting and until his successor is elected and qualified
or until his earlier resignation or removal.
When one or more directors shall resign from the board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective and each director so chosen shall hold office as provided in these
bylaws in the filling of other vacancies.
Section 3. Removal. Any director or directors may be removed, either
with or without cause, at any time by the affirmative vote of the holders of
shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares entitled to vote thereon at a meeting called
for that purpose at which a quorum is present; provided, however, that any
Default Director shall may only be removed, either with or without cause, at any
time by the affirmative vote of the holders of shares of the Class A 9%
Non-Voting Preferred Stock of the Corporation.
Section 4. Powers. The board of directors shall manage the property and
the business and affairs of this corporation and shall have all such powers and
authority, as may be exercised by the board of directors of a corporation
organized under the General Corporation Law of the State of Delaware.
Section 5. Meetings of Directors. Regular meetings of the board of
directors may be held within or without the State of Delaware at such time and
place as may be fixed from time to time by resolution of the board. No notice of
regular meetings shall be required.
Special meetings of the board of directors may be called by the
President, any Vice President, the Secretary or any director. Notice of the
date, time and place of the meeting shall be given by or at the direction of the
person or persons calling the meeting, and unless otherwise stated in the notice
thereof, any and all business may be transacted at any meeting without
specification of such business in the notice. Unless the board of directors
prescribes different periods of time for notice, notice shall be provided to
each director at least 24 hours in advance of the special meeting if notice is
by personal service, telephone, facsimile copier or in person and at least seven
days in advance if notice is by means of mail, telegram, cablegram or radiogram.
Special meetings of the directors may be held within or without the State of
Delaware as is indicated in the notice or waiver of notice thereof.
Section 6. Quorum. A majority of the total authorized number of
directors constituting the entire board of directors shall constitute a quorum
for the transaction of business, but a smaller number may adjourn from time to
time, without further notice, until a quorum is secured.
Section 7. Vote Necessary to Act and Participation by Conference
Telephone. The vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the board of directors, except as
may otherwise be provided by law, the certificate of incorporation or these
bylaws. Participation in a meeting by conference telephone or similar means by
which all participating members of the board can hear each other shall
constitute presence in person at such meeting.
Section 8. Executive and Other Committees.
(A) The board of directors may, by resolution passed by a majority of
the total authorized number of, or whole board or directors, designate an
executive committee and/or one or more other committees, each committee to
consist of two or more members of the board of directors. Any such committee, to
the extent provided in the resolution or in these bylaws, shall have and may
exercise the powers and authority of the board of directors in the management of
the business and affairs of the corporation, except in reference to powers or
authority expressly forbidden such a committee by applicable statutory law, and
may authorize the seal of the corporation to be fixed to all papers which may
require it.
(B) In the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
(C) The executive committee shall have and shall exercise, between the
meetings of the board of directors, the full power and authority of the board in
the management of the business and affairs of the corporation, including,
without limitation, the power and authority to declare a dividend, to call
meetings of shareholders and to authorize the issuance of stock, except in
reference to power and authority expressly forbidden by applicable statutory
law, and may authorize the seal of the corporation to be affixed to all papers
which require it; provided, however, that the executive committee shall not have
the power or authority to fill vacancies in its own membership which vacancies
shall be filled by the board of directors.
(D) The executive committee and such other committees shall meet at
stated times or on notice to all of their own number. They shall fix their own
rules of procedure. A majority shall constitute a quorum, but the affirmative
vote of a majority of the whole committee shall be necessary to act in every
case.
(E) Such other committees shall have and may exercise the powers and
authority of the board of directors to the extent provided in such resolution or
resolutions.
Section 9. Compensation. The board of directors shall fix the
compensation of directors.
Section 10. Rules of Procedure. Subject to applicable law, the
certificate of incorporation and these bylaws, the board of directors shall fix
its own rules of procedure and conduct from time to time.
Section 11. Action Without Meeting. Any action permitted or required to
be taken at any meeting of the board of directors may be taken by unanimous
written consent without a meeting subject to and to the extent permitted by
applicable Delaware law.
ARTICLE IV. OFFICERS
Section 1. Officers. The board of directors shall elect a President,
Secretary and Treasurer (by those or any other functionally equivalent executive
titles) and may elect other officers and agents, including one or more Vice
Presidents. In addition, the board of directors may elect a Chairman from among
its members. All officers of this corporation shall be chosen by the board of
directors by the vote of a majority of the directors present at a meeting at
which a quorum is present or by written consent pursuant to applicable statutory
law. No officer need be a stockholder.
Section 2. Number Of Offices. Any number of offices may be held by the
same person.
Section 3. Terms. The officers of the corporation shall hold office
until their successors are chosen and qualify or until their earlier resignation
or removal. Any officer chosen or appointed by the board of directors may resign
at any time by written notice to the corporation and may be removed immediately,
either with or without cause, at any time, by affirmative vote of a majority of
the total authorized number, or whole board of directors. If the office of any
officer or agent becomes vacant for any reason, the vacancy may be filled by the
board of directors in the same manner as any officer or agent of this
corporation is chosen.
Section 4. Duties of the Executive Officers. The officers of this
corporation shall have such powers and shall perform such duties, executive or
otherwise, as from time to time may be prescribed or assigned to them by the
board of directors, and to the extent not so provided, as generally pertain to
their respective offices, subject to the control of the board of directors. The
board of directors shall assign to one officer the duty to record the
proceedings of the meetings of the stockholders and directors in a book to be
kept for that purpose.
ARTICLE V. INDEMNIFICATION
Section 1. Right of Indemnification.
(A) This corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of this corporation), by
reason of the fact that he is or was a director or officer of this corporation,
or is or was serving at the request of this corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such act, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
this corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of this
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(B) This corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of this corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of this
corporation, or is or was serving at the request of this corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of this
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to this corporation unless and only to the extent that the Court of
Chancery of the State 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 the State of Delaware or such other court shall deem proper.
(C) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil or criminal action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding upon the receipt of an undertaking, which undertaking shall itself
be sufficient without the need for further evaluation of any credit aspects of
the undertaking or with respect to such advancement, by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized in
Section 145 of the Delaware General Corporation Law. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(D) The right of indemnification provided by this Article V shall apply
as to action by any person in his official capacity and as to action in another
capacity while holding such office and shall continue as to a person who has
ceased to be such director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(E) Notwithstanding the foregoing provisions of this Article V, the
right of indemnification provided hereunder shall not apply with respect to an
action, suit or proceeding (or part thereof) initiated by a director, officer or
other indemnified person unless the initiation of such action, suit or
proceeding (or part thereof) was authorized by the board of directors of this
corporation; provided, however, that this Paragraph (E) shall not limit the
right of an indemnified person to recover the expenses of suit with respect to a
suit by such indemnified person against this corporation to recover the unpaid
amount of a claim for indemnification under Paragraph (A) or Paragraph (B) of
this Article V, or the unpaid portion of a claim for advancement of expenses
under Paragraph (C) of this Article V, or the defense of a suit by this
corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, to the extent that the indemnified person is successful in
prosecuting or defending such suit.
(F) The right of indemnification provided by this Article V shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
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.
(G) The right of indemnification provided by this Article V shall be
deemed to be a contract between this corporation and each director and officer
of this corporation who serves in such capacity, both as to action in his
official capacity and as to action in another capacity while holding such
office, at any time while this Article V and the relevant provisions of the
General Corporation Law of the State of Delaware and other applicable law, if
any, are in effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
(H) Notwithstanding any provision of this Article V to the contrary,
this corporation may, but shall not be obligated to, purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of this corporation, or is or was serving at the request of this
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not this corporation would have the power to
indemnify him against such liability.
(I) For purposes of this Article V, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries, and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this Article
V.
ARTICLE VI. MISCELLANEOUS
Section 1. Certificates of Stock. Certificates of stock shall be
signed, manually or by facsimile signature, by the President or a Vice President
and either the Treasurer, Assistant Treasurer, Secretary or Assistant Secretary
(or the executive titles functionally equivalent thereto). If a certificate of
stock be allegedly lost, stolen or destroyed, another may be issued in its stead
upon proof of loss, theft or destruction and the giving of a satisfactory bond
of indemnity in an amount sufficient to indemnify the corporation against any
claim or loss. A new certificate may be issued without requiring bond when, in
the judgment of the board of directors, it is proper to do so.
Section 2. Transfer of Stock. All transfers of stock of the corporation
shall be made upon its books by the holder of the shares in person or by his
lawfully constituted representative, upon surrender of certificates of stock,
duly endorsed or with acceptable power attached thereto, for cancellation.
Section 3. Stockholders of Record. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person whether or
not it shall have express or other notice thereof, save as expressly provided by
the laws of Delaware.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its incorporation and the words
"Corporate Seal Delaware".
Section 5. Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the board of directors.
Section 6. Books and Records. The books, records and accounts of the
corporation, except as may otherwise be required by the laws of the State of
Delaware, may be kept within or without the State of Delaware, at such place or
places as may from time to time be designated by the Bylaws or by resolution of
the directors.
Section 7. Notices. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the event with respect to which such
waiver pertains, shall be deemed equivalent to proper notice. Attendance of a
person at a meeting shall constitute waiver of notice of such meeting, except
where attendance is for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE VII. AMENDMENT OF BYLAWS
These bylaws may be amended, altered, repealed or added to by the board
of directors but this power shall not divest or limit the power of the
stockholders to adopt, amend or repeal these bylaws.
TABLE OF CONTENTS
Page
ARTICLE I.OFFICES............................................................1
Section 1.Registered Office............................................1
Section 2.Other Offices................................................1
ARTICLE II.MEETINGS OF STOCKHOLDERS..........................................1
Section 1.Annual Meeting...............................................1
Section 2.Special Meetings.............................................1
Section 3.Time and Place of Special Meetings...........................2
Section 4.Notice.......................................................2
Section 5.Quorum.......................................................2
Section 6.Adjournment..................................................2
Section 7.Organization of Meetings.....................................3
Section 8.Voting and Record Date.......................................3
Section 9.Conduct of Meeting...........................................4
Section 10.Action Without Meeting......................................5
ARTICLE III.DIRECTORS........................................................5
Section 1.Number.......................................................5
Section 2.Term, Qualification, Vacancies and Newly Created
Directorships....................................................5
Section 3.Removal......................................................6
Section 4.Powers.......................................................7
Section 5.Meetings of Directors........................................7
Section 6.Quorum.......................................................7
Section 7.Vote Necessary to Act and Participation by Conference
Telephone........................................................7
Section 8.Executive and Other Committees...............................8
Section 9.Compensation.................................................9
Section 10.Rules of Procedure..........................................9
Section 11.Action Without Meeting......................................9
ARTICLE IV.OFFICERS..........................................................9
Section 1.Officers.....................................................9
Section 2.Number Of Offices...........................................10
Section 3.Terms.......................................................10
Section 4.Duties of the Executive Officers............................10
ARTICLE V.INDEMNIFICATION...................................................10
Section 1.Right of Indemnification....................................10
ARTICLE VI.MISCELLANEOUS....................................................14
Section 1.Certificates of Stock.......................................14
Section 2.Transfer of Stock...........................................15
Section 3.Stockholders of Record......................................15
Section 4.Corporate Seal..............................................15
Section 5.Fiscal Year.................................................15
Section 6.Books and Records...........................................15
Section 7.Notices.....................................................15
ARTICLE VII.AMENDMENT OF BYLAWS.............................................16