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EXHIBIT 3.4
AMENDED AND RESTATED
BY-LAWS
OF
TRI-UNION OPERATING COMPANY
A Delaware Corporation
ARTICLE I
OFFICES
1.1 Registered Office and Agent. The registered office of the
Corporation in the State of Delaware shall be established and maintained at 1209
Orange Street, Wilmington, Delaware 19801, County of New Castle, and the name of
the resident agent in charge thereof is the Corporation Trust Co.
2.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect, by plurality vote, a
Board of Directors, and transact such other business as may properly be brought
before the meeting.
2.2 Special Meeting. A special meeting of the stockholders of the
Corporation, and any proposals to be considered at such meetings, may be called
and proposed exclusively by the Board of Directors, pursuant to a resolution
approved by a majority of the members of the Board of Directors at the time in
office, and no stockholder of the Corporation shall require the Board of
Directors to call a special meeting of stockholders or to propose business at a
special meeting of stockholders. A special meeting shall be held on such date
and at such time as shall be designated by the person(s) calling the meeting and
stated in the notice of the meeting or in a duly executed waiver of notice of
such meeting. Only such business shall be transacted at a special meeting as may
be stated or indicated in the notice of such meeting or in a duly executed
waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the Board of
Directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. The Board of Directors, in its sole
discretion, may determine that meetings of stockholders be held by means of
remote communication, provided that the Corporation implement reasonable
measures to (i) verify the
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attendance and eligibility of remote participants, (ii) provide participants a
reasonable opportunity to participate and vote, and (iii) record the votes and
other actions taken by remote participants during the meeting.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders, the means of remote communication, if any,
by which stockholders and proxy holders may be deemed to be present in person
and vote at such meeting, and, in case of a special meeting, the purpose or
purposes for which the meeting is called shall be delivered not less than ten
nor more than 60 days before the date of the meeting, whether personally, by
mail, or by a form of electronic transmission to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, it shall
be directed to such stockholder at his or her address as it appears on the
records of the Corporation, unless he or she shall have filed with the Secretary
of the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him or her at such other address.
Notice sent by a form of electronic transmission shall be deemed given: (i) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice, (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice; (iii) if by a posting on an electronic network together with a
separate notice to the stockholder of such specific posting, upon the later of
(A) such posting and (B) the giving of such separate notice; or (iv) if by any
other form of electronic transmission, when directed to the stockholder. 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 and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a proper waiver of notice. Proper waiver of
notice shall either be in writing and signed by the person entitled to notice,
or transmitted electronically by the person entitled to notice.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the Board of Directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of at least 10
days prior to such meeting, such list shall be open to examination either (i) at
the principal place of business of the Corporation during ordinary business
hours, or (ii) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with notice of the
meeting. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with notice of the meeting. In the event that the
Corporation determines to make the list available on an electronic network, the
Corporation may take reasonable steps to ensure that such information is
available only to stockholders of the Corporation.
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders,
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except as otherwise provided by law, the certificate of incorporation of the
Corporation, or these by-laws. For the purposes of these bylaws, a stockholder
or proxy holder not physically present at a meeting of Stockholders may be
deemed present in person at that meeting by means of remote communication,
provided that the Corporation implement reasonable measures to verify his or her
attendance and eligibility. If a quorum shall not be present, in person or by
proxy, at any meeting of stockholders, the stockholders entitled to vote thereat
who are present, in person or by proxy, or, if no stockholder entitled to vote
is present, any officer of the Corporation may adjourn the meeting from time to
time, without notice other than announcement at the meeting (unless the Board of
Directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy, any
business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, if the adjournment is for more
than 30 days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these by-laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. At any meeting of stockholders, every
stockholder having the right to vote may vote either in person or by a proxy
executed in writing by the stockholder or by his or her duly authorized
attorney-in-fact. Each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of stockholders,
except (i) to the extent that the Certificate of Incorporation provides for more
or less than one vote per share or limits or denies voting rights to the holders
of the shares of any class or series or (ii) as otherwise provided by law. If
authorized by the Board of Directors, such requirement of a written ballot shall
be satisfied by a ballot submitted by electronic transmission, provided that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorized by the stockholder or proxy holder. Each such proxy shall be filed
with the Secretary or an Assistant Secretary of the Corporation before or at the
time of the meeting. No proxy shall be valid after three years from the date of
its execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders, or any adjournment
thereof, or entitled to receive payment of any dividend or 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,
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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, for any such determination of stockholders, such date in
any case to be not more than 60 days and not less than ten days prior to such
meeting. If no record date is fixed:
(a) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice 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.
(b) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these by-laws or by a person appointed by the meeting.
2.11 Inspectors. The Board of Directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his or her ability. The
inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the results,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter determined
by them and shall execute a certificate of any fact found by them. No director
or candidate for the office of director shall act as an inspector of an election
of directors. Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the Board of Directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the
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Corporation, or these by-laws, the Board of Directors may exercise all the
powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors
which shall constitute the entire Board of Directors shall be not less than one
(1) nor more than thirteen (13). The number of directors which shall constitute
the entire Board of Directors shall be determined by resolution adopted by a
majority of the members of the Board of Directors. Except as otherwise required
by law or the certificate of incorporation of the Corporation, the directors
shall be elected at an annual meeting of stockholders at which a quorum is
present. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy and entitled to vote on the election
of directors. Each director so chosen shall hold office until his or her term
expires as provided in the certificate of incorporation and until his or her
successor is elected and qualified or, if earlier, until his or her death,
resignation, or removal from office. None of the directors need be a stockholder
of the Corporation or a resident of the State of Delaware. Each director must
have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire Board of Directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Any or all of the directors may be removed, with or
without cause, at any time by the vote of the Stockholders at a special meeting
of Stockholders called for that purpose. Any director may be removed for cause
by the action of the Directors at a special meeting of the Board of Directors
called for that purpose.
3.5 Vacancies. Vacancies and newly created directorships resulting from
an increase in the authorized number of directors may be filled by a majority
vote of the directors in office, although less than a quorum, or by election by
the Stockholders at any meeting thereof. A director elected to fill a vacancy
shall be elected for the unexpired portion of the term of his or her predecessor
in office. A director elected to fill a newly created directorship shall serve
until the next succeeding annual meeting of Stockholders and until his or her
successor shall have been elected and qualified.
3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine or as shall
be specified in the notice of any such meeting or duly executed waiver of notice
of any such meeting.
3.7 First Meeting. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the Board of
Directors after each annual meeting of stockholders at which a quorum shall be
present, the Board of Directors shall elect the officers of the Corporation.
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3.9 Regular Meetings. Regular meetings of the Board of Directors shall
be held at such times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
3.12 Quorum; Majority Vote. At all meetings of the Board of Directors ,
a majority of the directors fixed in the manner provided in these by-laws shall
constitute a quorum for the transactions of business. If at any meeting of the
Board of Directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without future notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these by-laws, the act
of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the Board of Directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these by-laws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.13 Procedure. At meetings of the Board of Directors, business shall
be transacted in such order as from time to time the Board of Directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the Board of Directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the Board of Directors
unless the Board of Directors appoints another person to act as secretary of the
meeting. The Board of Directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action unless his or
her dissent shall be entered in the minutes of the meeting or unless he shall
file his or her written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.15 Compensation. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at
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regular or special meetings of the Board of Directors or any committee thereof;
provided, that nothing contained herein shall be construed to preclude any
director from serving the Corporation in any other capacity or receiving
compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The Board of Directors may, by resolution adopted by a
majority of the entire Board of Directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire Board
of Directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire Board of
Directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his or her term as director, (ii) his or her resignation as a
committee member or as a director, or (iii) his or her removal as a committee
member or as a director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the Board of Directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these by-laws.
4.4 Committee Changes. The Board of Directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The Board of Directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the Board of Directors shall constitute a
quorum for the transaction of
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business. If a quorum is not present at a meeting of any committee, a majority
of the members present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present. The act of
a majority of the members present at any meeting at which a quorum is in
attendance shall be the act of a committee, unless the act of a greater number
is required by law, the certificate of incorporation of the Corporation, these
by-laws or the resolutions creating the committee.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared in either paper or electronic form and shall report the same to the
Board of Directors upon the request of the Board of Directors. The minutes of
the proceedings of each committee shall be delivered to the Secretary of the
Corporation for placement in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the Board of
Directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the Board of
Directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these by-laws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his or her address as it appears
on the books (or in the case of a stockholder, the stock transfer records of the
Corporation), (b) by a form of electronic transmission, or (c) by any other
method permitted by law (including but not limited to overnight courier service
or telegram). Any notice required or permitted to be given by mail shall be
deemed to be delivered and given upon the time when the same is deposited in the
United States; provided that, with respect to any notice given to a director by
mail, the Corporation shall telefax or send by overnight courier a copy of such
notice (the "Concurrent Mail Notice"), on the same day that such notice is
deposited in the mail, to a fax number or street address previously provided by
a director in writing to the Corporation; and provided further, however, that
failure of a director to receive the Concurrent Mail Notice shall not affect the
validity of the notice given by mail. Any notice given by a form of electronic
transmission, including but not limited to facsimile telecommunication,
electronic mail, or posting on an electronic network, shall be deemed to be
delivered if consented to by the stockholder to whom notice is given. Any such
consent shall be revocable by the stockholder by written notice to the
Corporation. Such consent shall be deemed revoked if the Corporation is unable
to deliver two consecutive notices by electronic transmission, and such
inability becomes known to the Corporation or its transfer agent. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given upon the time delivered to such service with all
charges prepaid and addressed as aforesaid; provided that, with respect to any
notice given to a director by overnight courier service, the Corporation shall
telefax a copy of such notice (the "Concurrent Courier Notice"), on the same day
that such notice is deposited with the courier
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service, to a fax number previously provided by a director in writing to the
Corporation; and provided further, however, that failure of a director to
receive the Concurrent Courier Notice shall not affect the validity of the
notice given by overnight courier service. Any notice required or permitted to
be given by telegram, telex, or telefax to be delivered and given upon the time
transmitted as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these by-laws, a waiver
thereof either (i) in writing and signed by the person or person entitled to
such notice, or (ii) by a form of electronic transmission by the person entitled
to notice, whether before or after the time stated therein, shall be equivalent
to the giving of such notice. Attendance of a stockholder, director, or
committee member at a meeting shall constitute a waiver of notice of such
meeting, except where such person attends for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the Board of
Directors may from time to time elect or appoint, including, without limitation,
a Chairman of the Board, Chief Executive Officer, one or more Vice Presidents
(with each Vice President to have such descriptive title, if any, as the Board
of Directors shall determine), and a Treasurer. Each officer shall hold office
until his or her successor shall have been duly elected and shall have
qualified, until his or her death, or until he shall resign or shall have been
removed in the manner hereinafter provided. Any two or more offices may be held
by the same person. None of the officers need be a stockholder or a director of
the Corporation or a resident of the state of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal or otherwise) may be filled by the Board of
Directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these by-laws or
as may be determined by resolution of the Board of Directors not inconsistent
with these by-laws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the Board of Directors; provided, however,
that the Board of Directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to a committee of the Board of Directors, the Chairman of the Board
or the President.
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6.6 Chairman of the Board. The Chairman of the Board shall have such
powers and duties as may be reasonably prescribed by the Board of Directors.
Such officer shall preside, if present, at all meetings of the stockholders and
of the Board of Directors. Such officer may sign all certificates for shares of
stock of the Corporation.
6.7 Chief Executive Officer. The Chief Executive Officer shall have
general supervision of the affairs of the Corporation and shall have general and
active control of all its business. He or she shall preside, in the absence of
the Chairman of the Board, at all meetings of stockholders. He or she shall see
that all orders and resolutions of the Board of Directors and the stockholders
are carried into effect. He or she shall have general executive charge,
management, and control of the properties and operations of the Corporation in
the ordinary course of its business, with all such powers with respect to such
properties and operations as may be reasonably incident to such responsibility,
and shall have such powers and authority usually appertaining to the chief
executive officer of a corporation, except as otherwise provided in these
by-laws.
6.8 President. Unless otherwise provided by the Board of Directors, the
President shall be the Chief Executive Officer of the Corporation and shall have
general charge of the business and affairs of the Corporation, subject, however,
to the right of the Board of Directors to confer specified powers on officers
and subject generally to the direction of the Board of Directors. The President
shall preside at all meetings of the Stockholders and directors at which he is
present and shall perform such other duties as may from time to time be assigned
to him by the Board of Directors.
6.9 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors, the Chief Executive
Officer or the President, and (in order of their seniority as determined by the
Board of Directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
6.10 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chief Executive Officer or the
President.
6.11 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer or the President. The Assistant Treasurers (in the order of
their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.12 Secretary. Except as otherwise provided in these by-laws, the
Secretary shall keep the minutes of all meetings of the Board of Directors and
of the stockholders in books provided for
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that purpose, and he shall attend to the giving and service of all notices. He
may sign with the Chairman of the Board, the Chief Executive Officer or the
President, in the name of the Corporation, all contracts of the Corporation and
affix the seal of the Corporation thereto. He may sign with the Chairman of the
Board, the Chief Executive Officer or the President all certificates for shares
of stock of the Corporation, and he shall have charge of the certificate books,
transfer books, and stock papers as the Board of Directors may direct, all of
which shall at all reasonable times be open to inspection by any director upon
application at the office of the Corporation during business hours. He shall in
general perform all duties incident to the office of the Secretary, subject to
the control of the Board of Directors, the Chief Executive Officer, and the
President.
6.13 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer or the President. The Assistant Secretaries (in the order of
their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificate for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if her were such officer, transfer agent, or registrar at the
date of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his or her legal representative, to advertise
the same in such manner as it shall require and/or to give the Corporation a
bond with a surety or sureties satisfactory to the Corporation in such sum as it
may direct as indemnity against any claim, or expense resulting from a claim,
that may be made against the Corporation with respect to the certificate or
certificates alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation
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of a certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, the Corporation or
its transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The Board of Directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the Board of Directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the Board of
Directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the Board of Directors.
8.2 Reserves. There may be created by the Board of Directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the Board of Directors shall
consider beneficial to the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and Board of Directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors; provided, that if such fiscal year is not fixed by the
Board of Directors and the selection of the fiscal year is not expressly
deferred by the Board of Directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the Board of Directors.
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8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the Board of Directors or by giving written
notice to the Board of Directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
8.7 Securities of Other Corporation. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
8.8 Meetings by Remote Communication. Stockholders (acting for
themselves or through a proxy), members of the Board of Directors, and members
of a committee of the Board of Directors may participate in and hold a meeting
of such stockholders, Board of Directors, or committee by means of remote
communication, including but not limited to a conference telephone,
videoconference transmission, internet chat room, or similar communications
capability, provided that the Corporation implement reasonable measures to (i)
verify the attendance and eligibility of remote participants, (ii) provide
participants a reasonable opportunity to participate and vote, and (iii) record
the votes and other actions taken by remote participants during the meeting.
Participation in a meeting pursuant to this section shall constitute presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
8.9 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation of the Corporation or by these by-laws, any action
required or permitted to be taken at a meeting of the stockholders of the
Corporation, the Board of Directors, or of any committee of the Board of
Directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by the number of stockholders
required by law or the certificate of incorporation of the Corporation, all the
directors or all the committee members, as the case may be, entitled to vote
with respect to the subject matter thereof, and such consent shall have the same
force and effect as a vote of such stockholders, directors or committee members,
as the case may be, and may be stated as such in any certificate or document
filed with the Secretary of State of the State of Delaware or in any certificate
delivered to any person. Such consent or consents shall be filed with the
minutes of proceedings of the stockholders, board or committee, as the case may
be. An electronic transmission, including but not limited to a telegram,
cablegram, or facsimile telecommunication, shall be deemed to be written,
signed, and dated for the purposes of this section, provided that any such
transmission is delivered with information from which the Corporation can
determine (i) that the transmission was transmitted by the stockholder or proxy
holder or by a person or persons authorized to act on his or her behalf, and
(ii) the date on which the transmission was transmitted, as that date shall be
deemed to be the date on which the consent was signed. However, for an
electronic transmission to be deemed a valid consent, such transmission must be
(i) reproduced in paper form and (ii) delivered to the registered office of the
Corporation in the State of Delaware, its principal place of business, or to an
officer or agent of the Corporation having custody of its minute books. Any
copy, facsimile, or other reliable reproduction of the entire original written
consent may be used in lieu of the original writing.
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8.10 Invalid Provisions. If any part of these by-laws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the Board of Directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these by-laws have been inserted
for administrative convenience only and do not constitute matter to be construed
in interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
8.14 Amendments. These by-laws may be altered, amended, or repealed or
new by-laws may be adopted by the Board of Directors, or by the affirmative vote
of the holders of not less than two-thirds of the shares of the Corporation then
entitled to be voted in an election of directors, voting together as a single
class.
The undersigned, the Assistant Secretary of the Corporation, hereby
certifies that the foregoing by-laws were adopted by unanimous consent by the
directors of the Corporation as of this 18th day of June, 2001.
[signature page follows]
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ADOPTION OF BY-LAWS
Adopted by the resolution and vote of the Board of Directors of
Tri-Union Operating Company on the 18th day of June, 2001.
By:
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Richard Bowman, President
Attest:
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R. Kelly Plato, Assistant Secretary
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