RESTATED DECEMBER 11, 2003
BYLAWS
OF
HARVEST NATURAL RESOURCES, INC.
ARTICLE 1
SHAREHOLDERS
1.1 Time of Annual Meeting. The annual meeting of the shareholders
shall be held 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 the
waiver of notice thereof, for the purpose of electing directors and transacting
such other business as may be properly brought before the meeting. If the day
fixed for the annual meeting is a legal holiday, the meeting shall be held on
the next succeeding business day.
1.2 Business Properly Brought Before an Annual Meeting. At an annual
meeting of the shareholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or (c) otherwise properly brought before the meeting by a
shareholder of the corporation. For business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 60 days nor more
than 180 days prior to the anniversary date of the immediately preceding annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 45 days later than the anniversary date of the immediately
preceding annual meeting, notice by the shareholder to be timely must be
received not later than the close of business on the tenth day following the
earlier of the date on which a written statement setting forth the date of the
annual meeting was mailed to shareholders or the date on which it is first
disclosed to the public. A shareholder's notice to the Secretary shall set forth
as to each matter the shareholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the shareholder proposing such proposal, (c) the class and number of shares of
the Corporation which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business. In addition, if the
shareholder's ownership of shares of the Corporation, as set forth in the
notice, is solely beneficial, documentary evidence of such ownership must
accompany the notice. Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Section 1.2. The presiding officer of an annual
meeting shall, if the facts warrant, determine and declare to the
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meeting that any business which was not properly brought before the meeting is
out of order and shall not be transacted at the meeting.
1.3 Adjournment of Annual Meeting. An annual meeting of shareholders
may be adjourned by the presiding officer of the meeting for any reason
(including, if the presiding officer determines that it would be in the best
interests of the corporation to extend the period of time for the solicitation
of proxies) from time to time and place to place until the presiding officer
shall determine that the business to be conducted at the meeting is completed,
which determination shall be conclusive.
1.4 Special Meetings. Except as otherwise required by law, a special
meeting of the shareholders may be called only by the President and Chief
Executive Officer or the Chairman of the Board and then only as provided for in
resolutions duly adopted by the Board of Directors or at the written request of
a majority of the directors. The resolutions or request shall state the purpose
or purposes for which the meeting is to be called. The notice of every special
meeting of shareholders shall state the purpose for which it is called. At any
special meeting of shareholders, only such business shall be conducted as shall
be provided for in the resolutions or request calling the special meeting. Any
special meeting of shareholders may be adjourned by the presiding officer of the
meeting for any reason (including, if the presiding officer determines that it
would be in the best interests of the corporation to extend the period of time
for the solicitation of proxies) from time to time and from place to place until
the presiding officer shall determine that the business to be conducted at the
meeting is completed, which determination shall be conclusive.
1.5 Place of Meetings. Meetings of the shareholders shall be held at
the principal business office of the corporation or at such other place as may
be determined by the Board of Directors and stated in the notice of meeting.
1.6 Notice of Meetings. Except as otherwise permitted or required by
law, written or printed notice stating the place, if any, day and hour of the
meeting, the means of remote communications, if any, by which shareholders and
proxy holders may be deemed to be present in person and vote at the meeting and,
in case of a special meeting, the purpose or purposes for which the meeting is
called, shall be mailed to each shareholder of record entitled to vote at the
meeting at the shareholder's address as it appears on the stock transfer records
of the corporation, with postage thereon prepaid, not less than 10 nor more than
60 days before the date of the meeting. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting of the time,
place, if any, and the means of remote communications, if any, by which
shareholders and proxy holders may be deemed to be present in person and vote at
the adjourned meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. 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
shareholder of record entitled to vote at the meeting, except as otherwise
permitted or required bylaw.
1.7 Waiver of Notice. Whenever any notice is required to be given to
any shareholder of the corporation, a waiver thereof in writing, signed by the
person or persons entitled to such
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notice, or a waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. The attendance of a shareholder at a meeting shall
constitute a waiver of notice of such meeting, except where a shareholder
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened.
1.8 Fixing of Record Date.
(a) In order that the corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to 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 a record date (which record date shall
not precede the date on which the resolution fixing the record date is adopted
by the Board of Directors), which (as applicable) shall not be more than 60 nor
less than 10 days before the date of such meeting, shall not be more than 10
days after the date on which the resolution fixing the record date for the
consent is adopted by the Board of Directors, or shall not be more than 60 days
prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders 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;
(2) The record date for determining shareholders entitled to
express consent to corporate action in writing without a meeting, (i)when no
prior action by the Board of Directors is necessary, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation as required by law or (ii) when prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
the prior action;.
(3) The record date for determining shareholders 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 shareholders of record entitled to notice of
or to vote at a meeting of shareholders 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.
1.9 Voting Records.
(a) The officer who has charge of the stock ledger of the
corporation shall make, at least 10 days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in the name of each shareholder. Such list shall be open to
the examination of any shareholder for any purpose germane to the meeting for a
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period of at least 10 days prior to the meeting during ordinary business hours,
at the principal place of business of the corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder who is present.
(b) Upon the willful neglect or refusal of the directors to produce
such a list at any meeting for the election of directors they shall be
ineligible for election to any office at such meeting.
(c) The stock ledger shall be the only evidence as to who are the
shareholders entitled to examine the stock ledger, the shareholder list or the
books of the corporation, or to vote in person or by proxy at any meeting of
shareholders.
1.10 Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders for the transaction of business. Whether or not a
quorum is present, a majority of the shareholders present in person or by proxy
may adjourn the meeting from time to time to a different time and place without
further notice if the time and place thereof are announced at the meeting at
which the adjournment is taken. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally called. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
1.11 Vote. Unless otherwise provided by the Certificate of
Incorporation or by the corporation laws of the State of Delaware, each
shareholder of the corporation shall, at every meeting of shareholders, be
entitled to one vote in person or by proxy for each share of capital stock of
the corporation registered in his name. The vote of the holders of a majority of
the shares present and entitled to vote at any duly organized meeting at which a
quorum is present or represented shall decide any question unless the vote of a
different number shall be expressly required by law, the Certificate of
Incorporation or these Bylaws in which case such express provision shall govern
and control the decision of that matter. 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.
1.12 Proxies. (a) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after 3
years from its date, unless the proxy provides for a longer period.
(a) Without limiting the manner in which a stockholder may
authorize another person or persons to act for such stockholder as proxy
pursuant to subsection (b) of this section, the following shall constitute a
valid means by which a stockholder may grant such authority;
(1) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder's authorized officer,
director, employee or agent signing such writing or
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causing such person's signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to
act for such stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission,
provided that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission as authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmissions are valid , the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied.
(b) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
(c) 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.
1.13 Voting of Shares by Certain Holders. (a) Any other corporation
owning voting shares in this corporation may vote the same by its President or
by proxy appointed by him, unless some other person shall be appointed to vote
such shares by resolution of the board of directors of such shareholder
corporation. A partnership holding shares of this corporation may vote such
shares by any general partner or by proxy appointed by any general partner. Any
other entity owning voting shares in this corporation may vote such shares by
the person duly authorized to vote such shares according to the entity's
constituent documents or to resolutions adopted by the entity's board of
directors or equivalent body.
(a) Shares standing in the name of a deceased person may be voted
by the executor or administrator of such deceased person, either in person or by
proxy. Shares standing in the name of a guardian, conservator or trustee may be
voted by such fiduciary, either in person or by proxy, but no such fiduciary
shall be entitled to vote shares held in such fiduciary capacity without a
transfer of such shares into the name of such fiduciary. Shares standing in the
name of a receiver may be voted by such receiver. A shareholder whose shares are
pledged shall be entitled to vote such shares, unless in the transfer by the
pledgor on the books of the Corporation, he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee, or his proxy, may represent the
stock and vote thereon. Persons holding stock in another fiduciary capacity
shall be entitled to vote the shares so held.
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(b) Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the corporation he or she
has expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or his or her proxy, may represent such stock and vote thereon.
(c) If shares or other securities having voting power stand of
record in the names of two or more persons, or if two or more persons have the
same fiduciary relationship respecting the same shares, unless the Secretary is
given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(1) If only one votes, the act of such person binds all;
(2) If more than one votes, the act of the majority so voting
binds all;
(3) If more than one votes and if the vote is evenly split on
any particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any, may
apply to the Court of Chancery or such other court as may have jurisdiction to
appoint an additional person to act with the person so voting the shares, which
shall then be voted as determined by a majority of such persons and the person
appointed by the court. If the instrument so filed shows that any such tenancy
is held in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
1.14 Procedures at Shareholders' Meetings. The order of business and
all other matters of procedure at every meeting of the shareholders may be
determined by the presiding officer of the meeting, who shall be the Chairman of
the Board of Directors, the President and Chief Executive Officer or such other
officer of the corporation as designated by the Board of Directors. The
presiding officer of the meeting shall have all the powers and authority vested
in a presiding officer by law or practice without restriction, including,
without limitation, the authority, in order to conduct an orderly meeting, to
impose reasonable limits on the amount of time at the meeting taken up in
remarks by any one shareholder and to declare any business not properly brought
before the meeting to be out of order.
1.15 Judge of Election. The Board shall appoint one or more Judges of
Election to serve at every meeting of the shareholders.
ARTICLE 2
BOARD OF DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall
be managed by its Board of Directors, who shall exercise all the powers of the
corporation not reserved to or conferred on the shareholders by statute, the
Certificate of Incorporation or these Bylaws..
2.2 Number, Tenure and Qualification. The number of directors of the
corporation shall be six. The directors shall hold office until the next annual
meeting of shareholders and until their successors shall have been elected and
qualified. The number of directors permitted
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under these Bylaws may be increased or decreased from time to time by amendment
to these Bylaws. Directors need not be residents of the State of Delaware or
shareholders of the corporation.
2.3 Nomination of Directors. Subject to the rights of holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations for the election of directors at a
shareholders' meeting may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any shareholder entitled to vote in
the election of directors generally. However, any shareholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at a shareholders' meeting only if written notice of such
shareholder's intent to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the corporation not later than (a) with respect to an election to
be held at an annual meeting of shareholders, 90 days prior to the anniversary
date of the date of the immediately preceding annual meeting, and (b) with
respect to an election to be held at a special meeting of shareholders for the
election of directors, the close of business on the tenth day following the date
on which a written statement setting forth the date of such meeting is first
mailed to shareholders provided that such statement is mailed no earlier than
120 days prior to the date of such meeting. Notwithstanding the foregoing if an
existing director is not standing for reelection to a directorship which is the
subject of an election at such meeting or if a vacancy exists as to a
directorship which is the subject of an election at a shareholders' meeting,
whether as a result of resignation, death, an increase in the number of
directors, or otherwise, then a shareholder may make a nomination with respect
to such directorship at any time not later than the close of business on the
tenth day following the date on which a written statement setting forth the fact
that such directorship is to be elected and the name of the nominee proposed by
the Board of Directors is first mailed to shareholders. Each notice of a
nomination from a shareholder shall set forth: (i) the name and address of the
shareholder who intends to make the nomination and of the person or persons to
be nominated; (ii) a representation that the shareholder is a holder of record
of stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (iii) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (iv) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the Securities Exchange Act of
1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations); and (v) the consent of each nominee
to serve as a director of the corporation if so elected. The presiding officer
of the meeting may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
2.4 Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this Bylaw immediately after, and at the same
place as, the annual meeting of shareholders. The Board of Directors may
provide, by resolution, the time and place, either within or without the State
of Delaware, for the holding of additional regular meetings without other notice
than the resolution.
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2.5 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President or by one-third of the directors.
The person or persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State of Delaware, as
the place for holding any special meeting of the Board of Directors called by
them.
2.6 Notice. Written notice of any special meeting of the Board of
Directors shall be given at least two days prior to the meeting by personal
delivery, by mail or by telegram. Notice with respect to telephonic board
meetings shall be given at least 24 hours prior to the meeting by personal
delivery, telephone, mail or telefax. If mailed, notice shall be deemed to be
given when deposited in the United States mails addressed to the director at the
director's business address, with postage thereon prepaid. If by telegram,
notice shall be deemed to be given when the telegram is delivered to the
telegraph company. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where the director attends a meeting
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. 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.
2.7 Waiver of Notice. Whenever any notice is required to be given to
any director of the corporation, waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
2.8 Quorum; Majority Vote. A majority of the number of directors fixed
by Section 2.2 of this Article 2 shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors, unless a different number is provided by law, the
Certificate of Incorporation or these Bylaws.
2.9 Meeting by Telephone Conference; Consent in Lieu of Meeting.
(a) Members of the Board of Directors may hold a board meeting by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such
a meeting shall constitute presence in person at the meeting.
(b) Any action which is required or permitted to be taken by the
directors at a meeting may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by all of the directors entitled to
vote on the matter. Such consent, which shall have the same effect as a
unanimous vote of the directors, shall be filed with the minutes of the
corporation.
2.10 Vacancies. Except as otherwise provided by law, vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors, or by a sole
remaining director. Any such directorship not so filled by the directors
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shall be filled by election at the next annual meeting of shareholders or at a
special meeting of shareholders called for that purpose. A director elected to
fill a vacancy shall be elected to serve until the next annual meeting of
shareholders and until a successor shall be elected and qualified.
2.11 Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
2.12 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 taken unless
the director's dissent to the action is entered in the minutes of the meeting or
unless a written dissent to the action is filed with the person acting as the
secretary of the meeting before the adjournment thereof or forwarded by
certified or registered mail to the Secretary of the corporation immediately
after the adjournment of the meeting. The right to dissent shall not apply to a
director who voted in favor of the action.
2.13 Transactions With Directors.
(a) Any contract or other transaction or determination between the
corporation and one or more of its directors, or between the corporation and
another party in which one or more of its directors are interested, shall be
valid notwithstanding the relationship or interest or the presence or
participation of such director or directors in a meeting of the Board of
Directors or a committee thereof which acts upon or in reference to such
contract, transaction or determination, if:
(1) The material facts as to such relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or committee and it authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors are less than a quorum; or
(2) The material facts as to such relationship or interest and
as to the contract or transaction are disclosed or are known to the shareholders
entitled to vote, and the contract or transaction is specifically approved in
good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the shareholders.
(4) None of the provisions of this section shall invalidate any
contract, transaction or determination which would otherwise be valid under
applicable law.
2.14 Removal. All or any number of the directors may be removed, with
or without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
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2.15 Resignation. Any director may resign by delivering his or her
resignation, in writing, to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective on receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
2.16 Chairman of the Board. The Board of Directors may appoint a
Chairman of the Board from time to time, who shall preside at meetings of the
Board of Directors and shall perform such other duties as may be prescribed from
time to time by the Board of Directors.
ARTICLE 3
COMMITTEES
3.1 Designation. The Board of Directors may designate from among its
members an executive committee and/or one or more other committees, each
consisting of one or more directors. The designation of a committee, and the
delegation of authority to it, shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law. No
member of any committee shall continue to be a member thereof after ceasing to
be a director of the corporation. The Board of Directors shall have the power at
any time to increase or decrease the number of members of any committee, to fill
vacancies thereon, to change any member thereof and to change the functions or
terminate the existence thereof.
3.2 Powers. Any such committee, to the extent provided by resolution of
the Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation; adopting an
agreement of merger or consolidation; recommending to the shareholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets; recommending to the shareholders a dissolution of the corporation or a
revocation of a dissolution; or amending the Bylaws of the Corporation; and,
unless the resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger with respect to the merger into
the corporation of a subsidiary of which at least 90 percent of the outstanding
shares of each class are owned by the corporation.
3.3 Procedures; Meetings; Quorum.
(a) The Board of Directors shall appoint a chairman from among the
members of the committee and shall appoint a secretary who may, but need not, be
a member of the committee. The chairman shall preside at all committee meetings
and the secretary of the committee shall keep a record of its acts and
proceedings.
(b) Regular meetings of a committee, of which no notice shall be
necessary, shall be held on such days and at such places as shall be fixed by
resolution adopted by the committee. Special meetings of a committee shall be
called at the request of the President or of any member of the committee, and
shall be held upon such notice as is required by these Bylaws
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for special meetings of the Board of Directors, provided that notice by word of
mouth or telephone shall be sufficient if received in the city where the meeting
is to be held not later than the day immediately preceding the day of the
meeting. A waiver of notice of a meeting, signed by the person or persons
entitled to such notice, whether before or after the event stated therein, shall
be deemed equivalent to the giving of such notice.
(c) Attendance of any member of a committee at a meeting shall
constitute a waiver of notice of the meeting. A majority of a committee, from
time to time, shall be necessary to constitute a quorum for the transaction of
any business, and the act of a majority of the members present at a meeting at
which a quorum is present shall be the act of the committee. Members of a
committee may hold a meeting of such committee by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in such a meeting shall
constitute presence in person at the meeting.
(d) Any action which may be taken at a meeting of a committee may
be taken without a meeting if a consent in writing setting forth the actions so
taken shall be signed by all members of the committee entitled to vote with
respect to the subject matter thereof. The consent shall have the same effect as
a unanimous vote of the committee.
(e) The Board of Directors may vote to the members of any committee
a reasonable fee as compensation for attendance at meetings of the committee.
ARTICLE 4
OFFICERS
4.1 Number. The officers of the corporation shall be a President and a
Secretary. Such other officers and assistant officers as may be deemed necessary
may be elected or appointed by the Board of Directors and shall have such powers
and duties as may be prescribed by the Board of Directors. Any two or more
offices may be held by the same person.
4.2 Election and Term of Office. The officers of the corporation shall
be elected annually by the Board of Directors at the first meeting of the Board
of Directors held after the annual meeting of the shareholders. If the election
of officers shall not be held at the meeting, it shall be held as soon
thereafter as is convenient. Each officer shall hold office until a successor
shall have been duly elected and shall have qualified or until the officer's
death, resignation or removal in the manner hereinafter provided.
4.3 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 would be served thereby.
4.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise may be filled by the Board of Directors
for the unexpired portion of the term.
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4.5 President and Chief Executive Officer ("CEO"). The President and
CEO shall be the chief executive officer of the corporation and shall be in
general charge of its business and affairs, subject to the control of the Board
of Directors. The President and CEO shall preside, in the absence of a Chairman
of the Board, at all meetings of shareholders and directors. The President and
CEO may execute on behalf of the corporation all contracts, agreements, stock
certificates and other instruments. The President and CEO shall from time to
time report to the Board of Directors all matters within the President and CEO's
knowledge affecting the corporation which should be brought to the attention of
the Board. The President and CEO shall vote all shares of stock in other
corporations owned by the corporation, and shall be empowered to execute
proxies, waivers of notice, consents and other instruments in the name of the
corporation with respect to such stock. The President and CEO shall perform such
other duties as may be required by the Board of Directors.
4.6 Secretary. The Secretary shall keep the minutes of all meetings of
the directors and shareholders, and shall have custody of the minute books and
other records pertaining to the corporate business. The Secretary shall
countersign all stock certificates and other instruments requiring the seal of
the corporation and shall perform such other duties as may be required by the
Board of Directors.
4.7 Vice Presidents. In the absence of the President or in the event of
the President's death or inability or refusal to act, the Vice President (or, in
the event there be more than one Vice President, the Vice Presidents in the
order designated at the time of their election, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President and, when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Any Vice President shall perform
such other duties assigned by the President or by the Board of Directors.
4.8 Treasurer. The Treasurer shall be the chief financial and
accounting officer of the corporation. The Treasurer shall keep correct and
complete records of accounts showing the financial condition of the corporation.
The Treasurer shall be legal custodian of all moneys, notes, securities and
other valuables that may come into the possession of the corporation. The
Treasurer shall deposit all funds of the corporation that come into the
Treasurer's hands in depositories that the Board of Directors may designate. The
Treasurer shall pay the funds out only on the check of the corporation signed in
the manner authorized by the Board of Directors. The Treasurer shall perform
such other duties as assigned by the Board of Directors may require.
4.9 Salaries. The salaries of the officers shall be fixed from time to
time by the Board of Directors and no officer shall be prevented from receiving
such salary because the officer is also a director of the corporation.
ARTICLE 5
5.1 The Corporation shall indemnify to the fullest extent then
permitted by the law any person who is made, or threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise (including an
action, suit or proceeding by or in the right of the Corporation) by reason
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of the fact that the person is or was a director or officer of the Corporation,
or serves or served at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, actually and reasonably incurred in connection therewith.
Expenses incurred by an officer or director in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Article. The
indemnification provided hereby shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any statute, Bylaw,
agreement, vote of shareholders or directors or otherwise, both as to action in
any official capacity and as to action in another capacity while holding office,
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person.
Any person other than a director or officer who is or was an employee
or agent of the Corporation or any of its wholly owned or majority owned
subsidiaries, or fiduciary within the meaning of the Employee Retirement Income
Security Act of 1974 with respect to any employee benefit plans of the
Corporation or any of its wholly owned or majority owned subsidiaries, or is or
was serving at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise may be
indemnified to such extent as, and in the manner that, the board of directors in
its discretion at any time or from time to time may authorize.
5.2 No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided that the liability of a director shall not be
eliminated (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit.
ARTICLE 6
CERTIFICATE FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares.
(a) Certificates representing shares of the corporation shall be in
such form as shall be determined by the Board of Directors. Such certificates
shall be signed by the President or a Vice President and by the Secretary or an
Assistant Secretary and may be sealed with the seal of the corporation or a
facsimile thereof. All certificates for shares shall be consecutively numbered
or otherwise identified.
(b) The name and address of the person to whom the shares
represented by each certificate are issued, with the number of shares and date
of issue, shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer
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shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefore upon such terms and indemnity to the corporation
as the Board of Directors may prescribe.
6.2 Transfer of Shares. Transfer of shares of the corporation shall be
made only on the stock transfer books of the corporation by the holder of record
thereof or by the holder's legal representative, who shall furnish proper
evidence of authority to transfer, or by the holder's attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes.
6.3 Transfer Agent and Registrar. The Board of Directors may from time
to time appoint one or more transfer agents and one or more registrars for the
shares of the corporation, with such powers and duties as the Board of Directors
shall determine by resolution. The signatures of the President or Vice President
and the Secretary or Assistant Secretary upon a certificate may be facsimiles if
the certificate is manually signed on behalf of such officers by a transfer
agent or a registrar other than the corporation itself.
6.4 Officer Ceasing to Act. In case any officer who has signed or whose
facsimile signature has been placed upon a stock certificate shall have ceased
to be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if the signer were such officer at the date
of its issuance.
6.5 Fractional Shares. The corporation shall not issue certificates for
fractional shares.
ARTICLE 7
CONTRACTS, LOANS, CHECKS AND OTHER INSTRUMENTS
7.1 Contracts. The Board of Directors may authorize any officer or
officers and agent or agents 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.
7.2 Loans. No loans shall be contracted on behalf of the corporation
and no evidence of indebtedness shall be issued in its name unless authorized by
a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
7.3 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money and notes or other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers and agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
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ARTICLE 8
SEAL
8.1 Seal. The seal of the corporation shall be circular in form and
shall have inscribed thereon the name of the corporation and the state of
incorporation and the words "Corporate Seal."
8.2 Severability. Any determination that any provision of these Bylaws
is for any reason inapplicable, invalid, illegal or otherwise ineffective shall
not affect or invalidate any other provision of these Bylaws.
8.3 Evidence of Authority. A certificate by the Secretary or an
Assistant Secretary as to any action taken by the shareholders, directors, any
committee or any officer or representative of the corporation shall as to all
persons who rely on the certificate in good faith be conclusive evidence of such
action.
ARTICLE 9
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board of Directors or by the shareholders at any regular or
special meeting.
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