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EXHIBIT 3.5
SECOND RESTATED BYLAWS OF
HORNBECK-LEEVAC
MARINE SERVICES, INC.
Adopted by the Board of Directors: October 4, 2000
As Authorized by Resolution of the Board of Directors
Effective: October 4, 2000
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HORNBECK-LEEVAC MARINE SERVICES, INC.
(THE "CORPORATION")
SECOND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1.1. Offices. The registered office of the Corporation shall be
at 1209 Orange Street, Wilmington, Delaware 19805. The Corporation may have such
other offices within or without the State of Delaware as the Board of Directors
may from time to time establish.
ARTICLE II
CAPITAL STOCK
Section 2.1. Certificate Representing Shares. Shares of the classes of
capital stock of the Corporation shall be represented by certificates in such
form or forms as the Board of Directors may approve; provided that, such form or
forms shall comply with all applicable requirements of law or of the Certificate
of Incorporation. Such certificates shall be signed by the Chief Executive
Officer, President or a vice president, and by the secretary or an assistant
secretary, of the Corporation and may be sealed with the seal of the Corporation
or imprinted or otherwise marked with a facsimile of such seal. In the case of
any certificate countersigned by any transfer agent or registrar, provided such
countersigner is not the Corporation itself or an employee thereof, the
signature of any or all of the foregoing officers of the Corporation may be
represented by a printed facsimile thereof. If any officer whose signature, or a
facsimile thereof, shall have been set upon any certificate shall cease, prior
to the issuance of such certificate, to occupy the position in right of which
his signature, or facsimile thereof, was so set upon such certificate, the
Corporation may nevertheless adopt and issue such certificate with the same
effect as if such officer occupied such position as of such date of issuance;
and, issuance and delivery of such certificate by the Corporation shall
constitute adoption thereof by the Corporation. The certificates shall be
consecutively numbered, and as they are issued, a record of such issuance shall
be entered in the books of the Corporation.
Section 2.2. Stock Certificate Book and Stockholders of Record. The
secretary of the Corporation shall maintain, among other records, a stock
certificate book, the stubs in which shall set forth the names and addresses of
the holders of all issued shares of the Corporation, the number of shares held
by each, the number of certificates representing such shares, the date of issue
of such certificates, and whether or not such shares originate from original
issue or from transfer. The names and addresses of stockholders as they appear
on the stock certificate book shall be the official list of stockholders of
record of the Corporation for all purposes. The Corporation shall be entitled to
treat the holder of record of any shares as the owner thereof for all purposes,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such shares or any rights deriving from such shares on the part of any other
person, including, but without limitation, a purchaser, assignee, or transferee,
unless and until
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such other person becomes the holder of record of such shares, whether or not
the Corporation shall have either actual or constructive notice of the interest
of such other person.
Section 2.3. Stockholder's Change of Name or Address. Each stockholder
shall promptly notify the secretary of the Corporation, at its principal
business office, by written notice sent by certified mail, return receipt
requested, of any change in name or address of the stockholder from that as it
appears upon the official list of stockholders of record of the Corporation. The
secretary of the Corporation shall then enter such changes into all affected
Corporation records, including, but not limited to, the official list of
stockholders of record.
Section 2.4. Transfer of Stock. The shares represented by any
certificate of the Corporation are transferable only on the books of the
Corporation by the holder of record thereof or by his duly authorized attorney
or legal representative upon surrender of the certificate for such shares,
properly endorsed or assigned. The Board of Directors may make such rules and
regulations concerning the issue, transfer, registration and replacement of
certificates as they deem desirable or necessary.
Section 2.5. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or registrars of the shares, or both, and
may require all share certificates to bear the signature of a transfer agent or
registrar, or both.
Section 2.6. Lost, Stolen or Destroyed Certificates. The Corporation
may issue a new certificate for shares of stock in the place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed; but, the
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to furnish an affidavit as to such
loss, theft, or destruction and to give a bond in such form and substance, and
with such surety or sureties, with fixed or open penalty, as the board may
direct, in order to indemnify the Corporation and its transfer agents and
registrars, if any, against any claim that may be made on account of the alleged
loss, theft or destruction of such certificate.
Section 2.7. Fractional Shares. Only whole shares of the stock of the
Corporation shall be issued. In case of any transaction by reason of which a
fractional share might otherwise be issued, the directors, or the officers in
the exercise of powers delegated by the directors, shall take such measures
consistent with the law, the Certificate of Incorporation and these Bylaws,
including (for example, and not by way of limitation) the payment in cash of an
amount equal to the fair value of any fractional share, as they may deem proper
to avoid the issuance of any fractional share.
ARTICLE III
THE STOCKHOLDERS
Section 3.1. Annual Meeting. Commencing in the calendar year 1998, the
annual meeting of the stockholders, for the election of directors and for the
transaction of such other business as may properly come before the meeting,
shall be held at the principal office of the Corporation, at 10:00 a.m. local
time, on the 10th day of May of each year unless such day is a legal holiday, in
which case such meeting shall be held at such hour on the first day thereafter
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which is not a legal holiday; or, at such other place and time as may be
designated by the Board of Directors. Failure to hold any annual meeting or
meetings shall not work a forfeiture or dissolution of the Corporation. If a
stockholder intends to bring up items of business or nominate directors at any
annual meeting, notice of such intent must be received at the Corporation's
principal executive offices on the date that is at least the number of days
before the annual meeting that is required from time to time under federal
securities laws with respect to companies registered under the Securities
Exchange Act of 1934.
Section 3.2. Special Meetings. Except as otherwise provided by law or
by the Certificate of Incorporation, special meetings of the stockholders may be
called by the chairman of the Board of Directors, the Chief Executive Officer,
President, a majority of the directors, or the holders of not less than
twenty-five percent (25%) of all the shares having voting power at such meeting,
and shall be held at the principal office of the Corporation or at such other
place, and at such time, as may be stated in the notice calling such meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purpose stated in the notice of such meeting given in accordance with the
terms of section 3.3.
Section 3.3. Notice of Meetings - Waiver. Written notice of each
meeting of stockholders, stating the place, day and hour of any meeting and, in
case of a special stockholders' meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of such meeting, either personally or by mail, by or at the
direction of the Chief Executive Officer, President, the secretary, or the
persons calling the meeting, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the stockholder at his address
as it appears on the stock transfer books of the Corporation, with postage
thereon prepaid. Such further or earlier notice shall be given as may be
required by law. The signing by a stockholder of a written waiver of notice of
any stockholders' meeting, whether before or after the time stated in such
waiver, shall be equivalent to the receiving by him of all notice required to be
given with respect to such meeting. Attendance by a person at a stockholders'
meeting shall constitute a waiver of notice of such meeting except when a person
attends a meeting 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. No notice of any adjournment of any meeting shall be
required.
Section 3.4. Closing of Transfer Books and Fixing of Record Date. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or adjournment thereof, or to express
consent to corporate action in writing without a meeting, 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, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed, the record date shall be as
follows: 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; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when
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no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and, 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.
Section 3.5. Voting List. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall be subject to lawful
inspection by any stockholder at any time during the usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any stockholders during the whole time
of the meeting.
Section 3.6. Quorum and Officers. Except as otherwise provided by law,
by the Certificate of Incorporation or by these bylaws, the holders of a
majority of the shares entitled to vote and represented in person or by proxy
shall constitute a quorum at a meeting of stockholders, but the stockholders
present at any meeting, although representing less than a quorum, may from time
to time adjourn the meeting to some other day and hour, without notice other
than announcement at the meeting. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. The vote of the
holders of a majority of the shares entitled to vote and thus represented at a
meeting at which a quorum is present shall be the act of the stockholders'
meeting, unless the vote of a greater number is required by law. The chairman of
the board shall preside at, and the secretary shall keep the records of, each
meeting of stockholders, and in the absence of either such officer, his duties
shall be performed by any other officer authorized by these bylaws or any person
appointed by resolution duly adopted at the meeting.
Section 3.7. Voting at Meetings. Each outstanding share shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders except to the extent that the Certificate of Incorporation or the
laws of the State of Delaware provide otherwise.
Section 3.8. Proxies. A stockholder may vote either in person or by
proxy executed in writing by the stockholder; but, no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
Section 3.9. Balloting. All elections of directors shall be by written
ballot. Upon the demand of any stockholder, the vote upon any other question
before the meeting shall be by ballot. At each meeting, inspectors of election
may be appointed by the presiding officer of the meeting; and, at any meeting
for the election of directors, inspectors shall be so appointed
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on the demand of any stockholder present or represented by proxy and entitled to
vote in such election of directors. No director or candidate for the office of
director shall be appointed as such inspector. The number of votes cast by
shares in the election of directors shall be recorded in the minutes.
Section 3.10. Voting Rights Prohibition of Cumulative Voting for
Directors. Each outstanding share of common stock shall be entitled to one (1)
vote upon each matter submitted to a vote at a meeting of stockholders. No
stockholder shall have the right to cumulate his votes for the election of
directors but each share shall be entitled to one vote in the election of each
director. In the case of any contested election for any directorship, the
candidate for such position receiving a plurality of the votes cast in such
election shall be elected to such position.
Section 3.11. Record of Stockholders. The Corporation shall keep at its
principal business office, or the office of its transfer agents or registrars, a
record of its stockholders, giving the names and addresses of all stockholders
and the number and class of the shares held by each.
ARTICLE IV
THE BOARD OF DIRECTORS
Section 4.1. Number, Qualifications and Term. The business and affairs
of the Corporation shall be managed or be under the direction of the Board of
Directors; and, subject to any restrictions imposed by law, by the Certificate
of Incorporation, or by these Bylaws, the Board of Directors may exercise all
the powers of the Corporation. The Board of Directors shall consist of at least
four (4) members but no more than nine (9) members, as such number is determined
from time to time by a vote of at least 66-2/3% of the directors then in office.
The number may be decreased below four (4) or increased above nine (9) only by
(a) the vote of holders of at least eighty percent (80%) of the shares entitled
to vote thereon, or (b) the unanimous vote of the Board of Directors. No
decrease in number of directors shall shorten the term of any incumbent
director. Directors need not be residents of Delaware but shall be stockholders
of the Corporation. Except as otherwise provided in Section 4.3 of these Bylaws,
the Board of Directors shall be divided into three classes, each class to be as
nearly equal in number as possible. The terms of office of directors of the
first class are to expire at the first annual meeting of stockholders after
their election or appointment, that of the second class is to expire at the
second annual meeting after their election or appointment, and that of the third
class is to expire at the third annual meeting after their election or
appointment. Thereafter, each director shall serve for a term ending on the date
of the third annual meeting of stockholders following the annual meeting at
which such director was elected. Any such election shall be conducted in
accordance with Section 3.10 of these Bylaws. Each person elected a director
shall hold office until his successor is duly elected and qualified or until his
earlier resignation or removal in accordance with Section 4.2 of these Bylaws.
To alter or repeal this classified board provision, the affirmative vote of the
holders of at least eighty percent (80%) of the shares entitled to vote thereon
is required; provided, however, that if any person is entitled to designate one
or more new directors to the Board of Directors under the terms of an agreement
among stockholders holding a majority of the stock of the Corporation entitled
to vote in an election of directors at the time such agreement was executed,
which agreement was entered into on June 5,
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1998, and the appointment of the person so designated would expand the size of
the Board of Directors beyond the then-current maximum, then the size of the
Board shall be increased as necessary to permit the appointment of such new
director or directors.
Section 4.2. Removal. Any director or the entire Board of Directors may
be removed from office, at any time, but only for cause, at any meeting of
stockholders by the affirmative vote of at least 80% of the shares of the
stockholders entitled to vote at such meeting, if notice of the intention to act
upon such matter shall have been given in the notice calling such meeting. If
the notice calling such meeting shall have been so provided, the vacancy caused
by such removal may be filled at such meeting by the affirmative vote of at
least 80% of the shares of the stockholders present in person or by proxy and
entitled to vote. "Cause" is defined to include only: Conviction of a felony;
declaration of unsound mind by order of court; gross dereliction of duty;
commission of an action involving moral turpitude; or commission of an action
which constitutes intentional misconduct or a knowing violation of law if such
action in either event results both in an improper substantial personal benefit
and a material injury to the Corporation; PROVIDED, HOWEVER THAT IF THE DIRECTOR
THAT WAS REMOVED WAS ELECTED PURSUANT TO THE TERMS OF AN AGREEMENT AMONG
STOCKHOLDERS HOLDING A MAJORITY OF THE STOCK OF THE COMPANY ENTITLED TO VOTE IN
AN ELECTION OF DIRECTORS WHICH AGREEMENT WAS ENTERED INTO ON JUNE 5, 1998, THEN
SUCH VACANCY SHALL BE FILLED IN ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT AND
BY A VOTE OF A MAJORITY OF THE SHARES PRESENT AND ENTITLED TO VOTE IN A DULY
CONSTITUTED MEETING OF STOCKHOLDERS.
Section 4.3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director; provided, however, that if such vacancy is or
newly created directorships are occasioned by or in connection with an agreement
among stockholders holding a majority of the stock of the Company entitled to
vote in an election of directors at the time such agreement was executed, which
agreement was entered into on June 5, 1998, then such vacancy or newly created
directorships shall be filled in accordance with the terms of such agreement and
by the affirmative vote of a majority of the shares present and entitled to vote
in a duly constituted meeting of stockholders. When one or more directors shall
die, resign, or be removed from the board, a majority of the directors then in
office, including, if applicable, those who have so resigned effective at a
future date, 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 this
section in the filling of other vacancies. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office; provided,
however, that if such director held office under the terms of an agreement among
stockholders holding a majority of the stock of the Company entitled to vote in
an election of directors at the time such agreement was executed, which
agreement was entered into on June 5, 1998, the vacancy shall be filled in
accordance with the terms of such agreement and by the affirmative vote of a
majority of the shares present and entitled to vote in a duly constituted
meeting of stockholders.
Section 4.4. Regular Meetings. Regular meetings of the Board of
Directors shall be held immediately following each annual meeting of
stockholders, at the place of such meeting, and at such other times and places
as the Board of Directors shall determine. Ten days
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notice of any kind of such regular meetings (other than the meeting immediately
following the annual meeting) needs to be given to either old or new members of
the Board of Directors.
Section 4.5. Special Meetings. Special meetings of the Board of
Directors shall be held at any time by call of the chairman of the board, the
Chief Executive Officer, the President, or a majority of the Board of Directors.
The secretary shall give notice of each special meeting to each director at his
usual business or residence address by mail at least three days before the
meeting or by telegraph or telephone at least one day before such meeting.
Except as otherwise provided by law, by the Certificate of Incorporation, or by
these bylaws, such notice need not specify the business to be transacted at, or
the purpose of, such meeting. No notice shall be necessary for any adjournment
of any meeting. The signing of a written waiver of notice of any special meeting
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the receiving of such notice.
Attendance of a director at a meeting shall also constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express and
announced purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 4.6. Quorum. A majority of the number of directors fixed by or
in accordance with these bylaws shall constitute a quorum for the transaction of
business and the act of not less than a majority of such quorum of the directors
shall be required in order to constitute the act of the Board of Directors,
unless the act of a greater number shall be required by law, by the Certificate
of Incorporation or by these bylaws, or by other agreement or contract.
Section 4.7. Procedure at Meetings. The Board of Directors, at each
regular meeting held immediately following the annual meeting of stockholders,
shall appoint one of their number as chairman of the Board of Directors. The
chairman of the board shall preside at meetings of the board. In his absence at
any meeting, any officer authorized by these bylaws or any member of the board
selected by the members present shall preside. The secretary of the Corporation
shall act as secretary at all meetings of the board. In his absence, the
presiding officer of the meeting may designate any person to act as secretary.
At meetings of the Board of Directors, the business shall be transacted in an
orderly manner in accordance with those procedures set forth in Appendix A
attached hereto. At any meeting, by a majority vote of the Board of Directors,
the Board of Directors may adopt the Robert's Rules of Order to govern the
conduct of such meeting.
Section 4.8. Presumption of Assent. Any 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 taken
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as the
secretary of the meeting before adjournment thereof or shall forward such
dissent by 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.
Section 4.9. Action Without a Meeting. Any action required by statute
or permitted to be taken at a meeting of the directors of the Corporation, or of
any committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action so taken,
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shall be signed by all directors or all committee members as the case may be,
and if the consent in writing shall be filed with the minutes of the proceedings
of the board or committee.
Section 4.10. Compensation. As determined from time to time by
resolution of the Board of Directors, directors may receive stated annual
director's fees for their service payable in one or more installments, and a
fixed sum and reimbursement for reasonable expenses of attendance, if any, that
may be allowed for attendance at each regular or special meeting of the Board of
Directors or at any meeting of the executive committee of directors, if any, to
which such director may be elected in accordance with the following section
4.11; but, nothing herein shall preclude any director from serving the
Corporation in any other capacity or receiving compensation therefor.
Section 4.11. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the number of directors fixed by these
bylaws, may designate an executive committee, which committee shall consist of
two or more of the directors of the Corporation. Such executive committee may
exercise such authority of the Board of Directors in the business and affairs of
the Corporation as the Board of Directors may by resolution duly delegate to it
except as prohibited by law. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed upon it or him
by law. Any member of the executive committee may be removed by the Board of
Directors by the affirmative vote of a majority of the number of directors fixed
by or in accordance with the bylaws whenever in the judgment of the board the
best interests of the Corporation will be served thereby.
The executive committee shall keep regular minutes of its proceedings
and report the same to the Board of Directors when required. The minutes of the
proceedings of the executive committee shall be placed in the minute book of the
Corporation. Each member of the executive committee shall receive such
compensation for executive committee membership and participation in executive
committee meetings, including reimbursement for reasonable expenses actually
incurred by him by reason of such membership, as may be approved from time to
time by the Board of Directors. The Board of Directors may by resolution passed
by a majority of the Board of Directors, designate additional committees, which
committees shall have such power and authority and will perform such functions
as may be provided in such resolution.
Section 4.12. Advisory Committees. The Board of Directors shall appoint
an audit committee and compensation committee, and may for its convenience, and
at its discretion, appoint one or more other advisory committees of two or more
directors each; but, no such committees (other than the compensation committee)
shall have any power or authority except to advise the Board of Directors, any
such committee shall exist solely at the pleasure of the Board of Directors,
regular minutes of the proceedings of any such committee may, at the discretion
of the committee, be kept and, to the extent kept, shall be reported to the
Board of Directors when required. Any minutes of the proceedings of such
committees shall be placed in the minute books of the Corporation. Each member
of any such committee shall receive such compensation for such committee
membership and participation in committee meetings, including reimbursement for
reasonable expenses actually incurred by him by reason of such membership, as
may be approved from time to time by the Board of Directors.
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ARTICLE V
OFFICERS
Section 5.1. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a Chief Executive Officer, a President,
and a Secretary, each of whom shall be elected by the Board of Directors. Such
other officers (including vice presidents) and assistant officers as may be
deemed necessary, may be elected or appointed by the Board of Directors. Any two
(2) or more offices may be held by the same person.
Section 5.2. Election; Term; Qualification. Officers shall be chosen by
the Board of Directors annually at the meeting of the Board of Directors
following the annual stockholders' meeting. Each officer shall hold office until
his death, resignation, or removal, subject to reappointment at each annual
Board of Directors meeting immediately following the annual stockholders
meeting.
Section 5.3. 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 interests of the Corporation will be served thereby; but, such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create any contract rights.
Section 5.4. Vacancies. Any vacancy in any office for any cause may be
filled by appointment of the Chief Executive Officer or President subject to
ratification by the Board of Directors at any meeting.
Section 5.5. Duties. The officers of the Corporation shall have such
powers and duties, except as modified by the Board of Directors, as generally
pertain to their offices, respectively, as well as such powers and duties as
from time to time shall be conferred by the Board of Directors and by these
bylaws.
Section 5.6. Chief Executive Officer. The Chief Executive Officer shall
be subject to the control of the Board of Directors, and shall in general
supervise and control all business and affairs of the Corporation. The Chief
Executive Officer may sign, with the Secretary or any other proper officer of
the Corporation thereunto authorized by the Board of Directors, certificates for
shares of the Corporation, deeds, mortgages, bonds, contracts, and other
obligations in the name of the Corporation, which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed and executed; and in general shall perform all
duties incident to the office of Chief Executive Officer and such other duties
as may be prescribed by the Board of Directors from time to time. In the absence
of the Chairman, or if the directors neglect or fail to elect a Chairman, then
the Chief Executive Officer of the Corporation, if he is a member of the Board
of Directors, shall automatically serve as Chairman of the Board of Directors.
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Section 5.7. The President. In the absence of the Chief Executive
Officer, or in the event of his death or inability to act or refusal to act, the
President shall perform the duties of the Chief Executive Officer and when so
acting shall have all of the powers of and be subject to all of the restrictions
upon the Chief Executive Officer. In general, he shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Chief Executive Officer or the Board of Directors from time to time .
Section 5.8. The Vice Presidents. At the request of the Chief Executive
Officer, or President, or in their absence or disability, the vice presidents,
in the order of their election, shall perform the duties of the Chief Executive
Officer and President, and, when so acting, shall have all the powers of, and be
subject to all restrictions upon, the President. Any action taken by a vice
president in the performance of the duties of the Chief Executive Officer or
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken. The vice presidents shall perform
such other duties as may, from time to time, be assigned to them by the Board of
Directors, Chief Executive Officer or the President. A vice president may sign,
with the secretary or an assistant secretary, certificates of stock of the
Corporation.
Section 5.9. Secretary. The secretary shall keep the minutes of all
meetings of the stockholders, of the Board of Directors, and of the executive
committee, if any, of the board of directors, in one or more books provided for
such purpose and shall see that all notices are duly given in accordance with
the provisions of these bylaws or as required by law. He shall be custodian of
the corporate records and of the seal (if any) of the Corporation and see, if
the Corporation has a seal, that the seal of the Corporation is affixed to all
documents the execution of which on behalf of the Corporation under its seal is
duly authorized; shall have general charge of the stock certificate books,
transfer books and stock ledgers, and such other books and papers of the
Corporation as the Board of Directors may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon application
at the office of the Corporation during business hours; and in general shall
perform all duties and exercise all powers incident to the office of the
secretary and such other duties and powers as the Board of Directors or the
President from time to time may assign to or confer on him.
Section 5.10. Treasurer. The treasurer shall keep complete and accurate
records of account, showing at all times the financial condition of the
Corporation. He shall be the legal custodian of all money, notes, securities and
other valuables which may from time to time come into the possession of the
Corporation. He shall furnish at meetings of the Board of Directors, or whenever
requested, a statement of the financial condition of the Corporation, and shall
perform such other duties as these bylaws may require or the Board of Directors
may prescribe.
Section 5.11. Assistant Officers. Any assistant secretary or assistant
treasurer appointed by the Board of Directors shall have power to perform, and
shall perform, all duties incumbent upon the secretary or treasurer of the
Corporation, respectively, subject to the general direction of such respective
officers, and shall perform such other duties as these bylaws may require or the
Board of Directors may prescribe.
Section 5.12. Salaries. The salaries or other compensation of the
officers shall be fixed from time to time by the Board of Directors or the
compensation committee thereof
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approved by the Board of Directors. No officer shall be prevented from receiving
such salary or other compensation by reason of the fact that he is also a
director of the Corporation.
Section 5.13. Bonds of Officers. The Board of Directors may secure the
fidelity of any officer of the Corporation by bond or otherwise, on such terms
and with such surety or sureties, conditions, penalties or securities as shall
be deemed proper by the Board of Directors.
Section 5.14. Delegation. The Board of Directors may delegate
temporarily the powers and duties of any officer of the Corporation, in case of
his absence or for any other reason, to any other officer, and may authorize the
delegation by any officer of the Corporation of any of his powers and duties to
any agent or employee, subject to the general supervision of such officer.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Dividends. Dividends on the outstanding shares of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid by the Corporation in cash, in
property, or in the Corporation's own shares, but only out of the surplus of the
Corporation, except as otherwise allowed by law and the Certificate of
Incorporation.
Subject to limitations upon the authority of the Board of Directors
imposed by law or by the Certificate of Incorporation, the declaration of and
provision for payment of dividends shall be at the discretion of the Board of
Directors.
Section 6.2. Contracts. The Chief Executive Officer and President shall
have the power and authority to execute, on behalf of the Corporation, contracts
or instruments in the usual and regular course of business, and in addition the
Board of Directors may authorize any officer or officers, agent or agents, of
the Corporation to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the Corporation, and such authority may be
general or confined to specific instances. Unless so authorized by the Board of
Directors or by these bylaws, no officer, agent or employee shall have any power
or authority to bind the Corporation by any contract or engagement, or to pledge
its credit or to render it pecuniarily liable for any purpose or in any amount.
Section 6.3. Checks, Drafts, etc. All checks, drafts, or other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Corporation shall be signed by such officers or employees of the
Corporation as shall from time to time be authorized pursuant to these bylaws or
by resolution of the Board of Directors.
Section 6.4. Depositories. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks or
other depositories as the Board of Directors may from time to time designate,
and upon such terms and conditions as shall be fixed by the Board of Directors.
The Board of Directors may from time to time authorize the opening
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and maintaining within any such depository as it may designate, of general and
special accounts, and may make such special rules and regulations with respect
thereto as it may deem expedient.
Section 6.5. Endorsement of Stock Certificates. Subject to the specific
directions of the Board of Directors, any share or shares of stock issued by any
corporation and owned by the Corporation, including reacquired shares of the
Corporation's own stock, may, for sale or transfer, be endorsed in the name of
the Corporation by the Chief Executive Officer, President or any vice president;
and such endorsement may be attested or witnessed by the secretary or any
assistant secretary either with or without the affixing thereto of the corporate
seal.
Section 6.6. Corporate Seal. The corporate seal, if any, shall be in
such form as the Board of Directors shall approve, and such seal, or a facsimile
thereof, may be impressed on, affixed to, or in any manner reproduced upon,
instruments of any nature required to be executed by officers of the
Corporation.
Section 6.7. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year.
Section 6.8. Books and Records. The Corporation shall keep correct and
complete books and records of account and 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.
Section 6.9. Resignations. Any director or officer may resign at any
time. Such resignations shall be made in writing and shall take effect at the
time specified therein, or, if no time is specified, at the time of its receipt
by the President or secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
Section 6.10. Indemnification of Officers, Directors, Employees and
Agents.
(a) Mandatory Indemnification. Each person who at any time is or was a
director or officer of the Corporation, and is threatened to be or is made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative (a
"Proceeding"), by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, member,
employee, trustee, agent or similar functionary of another domestic or foreign
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other for-profit or non-profit enterprise (all such persons
entitled to indemnification hereunder being referred to as "Indemnitees"),
whether the basis of a Proceeding is alleged action in such person's official
capacity or in another capacity while holding such office, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law (the "DGCL") or any other applicable law as may
from time to time be in effect (but, in the case of any amendment of an existing
statute or enactment of a new statute, only to the extent that such amendment or
new
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statute permits the Corporation to provide broader indemnification rights than
law existing prior to such amendment or enactment permitted the Corporation to
provide), against all expense, liability and loss (including, without
limitation, court costs and attorneys' fees, judgments, fines, excise taxes or
penalties, and amounts paid or to be paid in settlement) actually and reasonably
incurred or suffered by such person in connection with a Proceeding, so long as
a majority of disinterested directors, the stockholders, or independent legal
counsel through a written opinion determines that such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and in the case of a criminal Proceeding, such
person had no reasonable cause to believe his conduct was unlawful. Such
indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation or a director, officer, partner, venturer,
proprietor, member, employee, trustee, agent or similar functionary of another
domestic or foreign corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other for-profit or non-profit
enterprise, and shall inure to the benefit of such person's heirs, executors and
administrators. The Corporation's obligations under this Section 6.10(a)
include, but are not limited to, the convening of any meeting and the
consideration thereat of any matter which is required by statute to determine
the eligibility of any person for indemnification.
(b) Prepayment of Expenses. Expenses incurred by a director or officer
of the Corporation in defending a Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding to the fullest extent
permitted by, and only in compliance with, the DGCL or any other applicable laws
as may from time to time be in effect, including, without limitation, any
provision of the DGCL which requires, as a condition precedent to such expense
advancement, the delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director is not entitled to be indemnified
under Section 6.10(a) or otherwise. Repayments of all amounts so advanced shall
be upon such terms and conditions, if any, as the Corporation's Board of
Directors deems appropriate.
(c) Vesting. The Corporation's obligation to indemnify and to prepay
expenses under Sections 6.10(a) and 6.10(b) shall arise, and all rights granted
to the Corporation's directors and officers hereunder shall vest, at the time of
the occurrence of the transaction or event to which a Proceeding relates, or at
the time that the action or conduct to which such Proceeding relates was first
taken or engaged in (or omitted to be taken or engaged in), regardless of when
such Proceeding is first threatened, commenced or completed (and whether arising
out of a transaction or event occurring before or after adoption of this Section
6.10). Notwithstanding any other provision of the Certificate of Incorporation
or bylaws of the Corporation, no action taken by the Corporation subsequent to
the adoption of this Section 6.10, either by amendment of the Certificate of
Incorporation or these bylaws of the Corporation or otherwise, shall diminish or
adversely affect any rights to indemnification or prepayment of expenses granted
under Sections 6.10(a) and 6.10(b) which shall have become vested as aforesaid
prior to the date that such amendment or other corporate action is effective or
taken, whichever is later.
(d) Enforcement. If a claim under Section 6.10(a) and/or Section
6.10(b) is not paid in full by the Corporation within 30 days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit in a court of competent
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jurisdiction against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall also be entitled to
be paid the expense of prosecuting such claim. It shall be a defense to any such
suit (other than a suit brought to enforce a claim for expenses incurred in
defending any Proceeding in advance of its final disposition when the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the DGCL or other applicable law to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation. The
failure of the Corporation (including its Board of Directors, independent legal
counsel, or stockholders) to have made a determination prior to the commencement
of such suit as to whether indemnification is proper in the circumstances based
upon the applicable standard of conduct set forth in the DGCL or other
applicable law shall neither be a defense to the action nor create a presumption
that the claimant has not met the applicable standard of conduct. The
termination of any 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 such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had reasonable cause
to believe that his conduct was unlawful.
(e) Nonexclusive. The indemnification provided by this Section 6.10
shall not be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any statute, the Corporation's Certificate
of Incorporation, other provisions of these bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(f) Permissive Indemnification. The rights to indemnification and
prepayment of expenses which are conferred on the Corporation's directors and
officers by Sections 6.10(a) and 6.10(b) may be conferred upon any employee or
agent of the Corporation or other person serving at the request of the
Corporation if, and to the extent, authorized by the Board of Directors.
(g) Insurance. The Corporation shall have power to purchase and
maintain insurance, at its expense, on behalf of any Indemnitee against any
expense, liability or loss asserted against such person and incurred by such
person in any such capacity, or arising out of such person's status as such,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Corporation's Certificate of
Incorporation, the provisions of this Section 6.10, the DGCL or other applicable
law.
Section 6.11. Meetings by Telephone. Subject to the provisions required
or permitted by these bylaws or the laws of the State of Delaware for notice of
meetings, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in and hold any meeting
required or permitted under these bylaws by telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in a meeting pursuant to this section shall constitute
presence in person at such a meeting, except where a person participates in the
meeting for the express
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purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Section 6.12. Transactions with Affiliated Parties. Any transaction
with affiliated parties must be approved by a majority of the Board of
Directors, including a majority of the disinterested members of the Board of
Directors, and must be on terms considered by such disinterested directors to be
no less favorable than those that the Corporation could obtain from unaffiliated
parties.
Section 6.13. Appointment of Auditors. The Board of Directors shall
have the authority to select the independent accountants to audit the
corporation's financial statements, subject to ratification by the stockholders
of the Corporation.
ARTICLE VII
AMENDMENTS
Section 7.1. Amendments. These Bylaws may be altered, amended or
repealed or new Bylaws adopted as set forth in the Certificate of Incorporation.
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APPENDIX A
The following procedures shall be followed in the conduct of
each Board of Directors or committee meeting:
1. Motion is made.
2. Motion is seconded.
3. Free and open discussion.
4. If seconded, after discussion a vote is taken.
5. Record the number of votes for and against the Motion.
6. Record the name of the individual making the Motion.
7. Record the name of the individual seconding the Motion.
8. Record the names of any individual voting against the Motion who acts
pursuant to Section 4.9.
9. Declare the vote unanimous if applicable.
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