EXHIBIT 3.7
CAIRN ENERGY USA, INC.
BYLAWS
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TABLE OF CONTENTS
ARTICLE 1. OFFICES .......................................................................................... 1
Section 1.1. Registered Office.................................................................... 1
Section 1.2. Other Offices ...................................................................... 1
ARTICLE 2. MEETINGS OF STOCKHOLDERS........................................................................... 1
Section 2.1. Place of Meetings .................................................................. 1
Section 2.2. Annual Meetings...................................................................... 1
Section 2.3. Notice of Annual Meeting ........................................................... 2
Section 2.4. Voting List ........................................................................ 2
Section 2.5. Special Meetings ................................................................... 2
Section 2.6. Notice of Special Meetings ......................................................... 2
Section 2.7. Quorum ............................................................................. 3
Section 2.8. Order of Business .................................................................. 3
Section 2.9. Votes Required for Action .......................................................... 4
Section 2.10. Method of Voting ................................................................... 4
ARTICLE 3. DIRECTORS ........................................................................................ 4
Section 3.1. General Powers ..................................................................... 4
Section 3.2. Number of Directors.................................................................. 5
Section 3.3. Election Qualification and Term of Office of Directors ............................. 5
Section 3.4. Notification of Nominations ........................................................ 5
Section 3.5. First Meetings ..................................................................... 6
Section 3.6. Regular Meetings ................................................................... 7
Section 3.7. Special Meetings ................................................................... 7
Section 3.8. Quorum, Vote Necessary for Action .................................................. 7
Section 3.9. Action Without Meeting ............................................................. 7
Section 3.10. Telephone and Similar Meetings ..................................................... 8
Section 3.11. Notice of Meetings ................................................................. 8
Section 3.12. Chairman of the Board .............................................................. 8
Section 3.13. Rules and Regulations .............................................................. 9
Section 3.14. Resignations......................................................................... 9
Section 3.15. Removal of Directors ............................................................... 9
Section 3.16. Vacancies .......................................................................... 9
Section 3.17. Compensation of Directors............................................................ 10
ARTICLE 4. EXECUTIVE AND OTHER COMMITTEES ................................................................... 10
Section 4.1. Executive Committee ................................................................ 10
Section 4.2. Other Committees..................................................................... 11
Section 4.3. Procedure; Meetings; Quorum ......................................................... 12
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ARTICLE 5. NOTICES............................................................................................ 13
Section 5.1. Method ............................................................................. 13
Section 5.2. Waiver............................................................................... 13
ARTICLE 6. OFFICERS........................................................................................... 13
Section 6.1 Election, Qualification.............................................................. 13
Section 6.2. Salary ............................................................................. 14
Section 6.3. Term, Removal ...................................................................... 14
Section 6.4 Resignation ........................................................................ 14
Section 6.5. Vacancies .......................................................................... 14
Section 6.6. President............................................................................ 15
Section 6.7. Vice Presidents...................................................................... 15
Section 6.8. Secretary............................................................................ 15
Section 6.9. Assistant Secretary ................................................................ 16
Section 6.10. Treasurer .......................................................................... 16
Section 6.11. Assistant Treasurer ................................................................ 17
ARTICLE 7. INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS ................................................................. 17
Section 7.1. Third-Party Actions ................................................................ 17
Section 7.2. Derivative Actions................................................................... 18
Section 7.3. Determination of Indemnification ................................................... 19
Section 7.4. Right to Indemnification ........................................................... 19
Section 7.5. Advance of Expenses ................................................................ 19
Section 7.6. Indemnification Not Exclusive ...................................................... 20
Section 7.7. Insurance .......................................................................... 20
Section 7.8. Definitions of Certain Terms ....................................................... 20
Section 7.9. Liability of Directors ............................................................. 21
ARTICLE 8. CERTIFICATES OF STOCK ............................................................................ 22
Section 8.1. Certificates ....................................................................... 22
Section 8.2. Facsimile Signatures ............................................................... 22
Section 8.3. Lost Certificates .................................................................. 22
Section 8.4. Transfers of Stock ................................................................. 23
Section 8.5. Fixing Record Date ................................................................. 23
Section 8.6. Registered Stockholders ............................................................ 23
ARTICLE 9. AFFILIATED TRANSACTIONS............................................................................ 24
Section 9.1. Validity ........................................................................... 24
Section 9.2. Disclosure, Approval; Fairness........................................................ 24
Section 9.3. Nonexclusive ....................................................................... 25
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ARTICLE 10. GENERAL PROVISIONS................................................................................ 25
Section 10.1. Dividends............................................................................ 25
Section 10.2. Reserves ........................................................................... 25
Section 10.3. Annual Statement ................................................................... 26
Section 10.4. Checks ............................................................................. 26
Section 10.5. Fiscal Year ........................................................................ 26
Section 10.6. Seal................................................................................. 26
ARTICLE XI. AMENDMENTS ...................................................................................... 27
Section 11.1. Amendments........................................................................... 27
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CAIRN ENERGY USA, INC.
BYLAWS
ARTICLE 1
OFFICES
SECTION 1.1. Registered Office. The registered office shall be in
Wilmington, County of New Castle, State of Delaware.
SECTION 1.2. Other Offices. The corporation may also have offices at such
other places, either within or without the State of Delaware, as the board of
directors may from time to time determine or as the business of the corporation
may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Place of Meetings. All meetings of the stockholders shall be
held at the office of the corporation or at such other places as may be fixed
from time to time by the board of directors, either within or without the State
of Delaware, and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2.2. Annual Meetings. Annual meetings of stockholders, commencing
with the year 1993, shall be held at the time and place to be selected by the
board of directors. If the day is a legal holiday, then the meeting shall be
held on the next following business day. At the meeting, the stockholders shall
elect a board of directors by written ballot and transact such other business as
may properly be brought before the meeting.
SECTION 2.3. Notice of Annual Meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
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SECTION 2.4. Voting List. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either 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 also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 2.5. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by (a) the chairman of the board, or
(b) the president and shall be called by the president or secretary at the
request in writing of a majority of the board of directors, or (c) by the
holders of ten percent or more of the outstanding shares of stock of the
corporation. Such request shall state the purpose or purposes of the proposed
meeting.
SECTION 2.6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting. Business transacted at any special meeting of
the stockholders shall be limited to the purposes stated in the notice.
SECTION 2.7. Quorum. The holders of a majority of the votes entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the
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stockholders for the transaction of business, except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power by action of the majority of votes entitled to vote
thereat and present in person or represented by proxy to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted that
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 2.8. Order of Business. At each meeting of the stockholders, one
of the following persons, in the order in which they are listed (and in the
absence of the first, the next, and so on), shall serve as chairman of the
meeting: president, chairman of the board, vice presidents (in the order of
their seniority if more than one) and secretary. The order of business at each
such meeting shall be as determined by the chairman of the meeting. The chairman
of the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof, and the opening and closing of the
voting polls.
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SECTION 2.9. Votes Required for Action. With respect to any matter, other
than the election of directors, the affirmative vote of a majority of the votes
cast by stockholders entitled to vote on that matter and represented in person
or by proxy at a meeting of stockholders at which a quorum is present shall be
the act of the stockholders, unless the matter is one upon which, by express
provision of the statutes or of the certificate of incorporation, a different
vote is required, in which case such express provision shall govern and control
the decision of such matter. Unless otherwise provided in the certificate of
incorporation or in accordance with statute, directors shall be elected by the
affirmative vote of a plurality of the votes cast by stockholders entitled to
vote in the election of directors at a meeting of stockholders at which a quorum
is present.
SECTION 2.10. Method of Voting. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period.
ARTICLE 3
DIRECTORS
SECTION 3.1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by law or by the certificate of incorporation of the
corporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
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SECTION 3.2. Number of Directors. Except as otherwise fixed by or pursuant
to the Certificate of Incorporation of the corporation relating to the rights of
the holders of any class or series of stock having preference over the common
stock as to dividends or upon liquidation, the number of directors constituting
the board shall be such number as shall be from time to time specified by
resolution of the board of directors; provided, however, no director's term
shall be shortened by reason of a resolution reducing the number of directors.
SECTION 3.3. Election Qualification and Term of Office of Directors.
Directors shall be elected at each annual meeting of stockholders to hold office
until the next annual meeting. Directors need not be stockholders unless so
required by the certificate of incorporation or these Bylaws, wherein other
qualifications for directors may be prescribed. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected and qualified or until his earlier resignation or removal.
Elections of directors need not be by written ballot.
SECTION 3.4. Notification of Nominations. Subject to the rights of the
holders of any class or series of stock having a preference over the common
stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the board of directors or by any stockholder entitled
to vote for the election of directors. Any stockholder entitled to vote for the
election of directors at a meeting may nominate persons for election as
directors only if written notice of such stockholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the secretary of the corporation not later than (i) with
respect to an election to be held at an annual meeting of stockholders, ninety
days in advance of such meeting, and (ii) with respect to an election to be held
at a special meeting of stockholders for the election of directors, the close of
business on the seventh day following the
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date on which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons intended to be nominated;
(b) a representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the board of
directors; and (e) the consent of each nominee to serve as a director of the
corporation if so elected. The chairman of the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the foregoing
procedure.
SECTION 3.5. First Meetings. The first meeting of each newly elected board
of directors shall be held immediately after and at the same location as (unless
otherwise notified) the annual meeting of stockholders and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such first meeting of
the newly elected board of directors, or in the event such meeting is not held
at the time and place so fixed by the stockholders, the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
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SECTION 3.6. Regular Meetings. Regular meetings of the board of directors
may be held without notice at such times and at such places as shall be
determined by the board at the annual meeting of the board.
SECTION 3.7. Special Meetings. Special meetings of the board may be called
by the chairman of the board or the president, and shall be called by the
president or secretary on the written request of two directors unless the board
consists of only one director, in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
SECTION 3.8. Quorum, Vote Necessary for Action. Except as may be otherwise
specifically provided by statute, by the certificate of incorporation or these
bylaws, at all meetings of the board, a majority of the entire board of
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors. If a quorum shall not be present at
any meeting of the board of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.9. Action Without Meeting. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the board or committee.
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SECTION 3.10. Telephone and Similar Meetings. Unless otherwise restricted
by the certificate of incorporation or these Bylaws, members of the board of
directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 3.11. Notice of Meetings. Notice of regular meetings of the board
of directors or of any adjourned meeting thereof need not be given. Notice of
each special meeting of the board shall be mailed to each director, addressed to
such director at such director's residence or usual place of business (or such
other place as such director may direct in writing to the Secretary of the
Company), at least two days before the day on which the meeting is to be held or
shall be sent to such director at such place by telegraph or telecopy or be
given personally or by telephone, not later than the day before the meeting is
to be held, but notice need not be given to any director who shall, either
before or after the meeting, submit a signed waiver of such notice or who shall
attend such meeting without protesting, prior to or at its commencement, the
lack of notice to such director. Every such notice shall state the time and
place but need not state the purpose of the meeting.
SECTION 3.12. Chairman of the Board. The board of directors may choose a
chairman of the board among its members. The chairman of the board shall, if
there be such a position, preside at meetings of the board of directors and, if
present, and in the absence of the president, preside at meetings of the
stockholders. Except as otherwise provided by resolution of the board, the
chairman of the board shall be ex-officio a member of all committees of the
board.
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SECTION 3.13. Rules and Regulations. The board of directors may adopt such
rules and regulations not inconsistent with the provisions of law, the
certificate of incorporation of the corporation or these Bylaws for the conduct
of its meetings and management of the affairs of the corporation as the board
may deem proper.
SECTION 3.14. Resignations. Any director of the corporation may at any
time resign by giving written notice to the board of directors, the chairman of
the board, the president or the secretary of the corporation. Such resignation
shall take effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.15. Removal of Directors. Unless otherwise restricted by
statute, by the certificate of incorporation or by these Bylaws, any director or
the entire board of directors may be removed, with or without cause by the
holders of a majority of the shares then entitled to vote at an election of
directors.
SECTION 3.16. Vacancies. Subject to the rights of the holders of any class
or series of stock having a preference over the common stock of the corporation
as to dividends or upon liquidation, any vacancies on the board of directors
resulting from death, resignation, removal or other cause, shall only be filled
by the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the board of directors, or by a sole remaining
director, and newly created directorships resulting from any increase in the
number of directors shall be filled by the board of directors, or if not so
filled, by the stockholders at the next annual meeting thereof or at a special
meeting called for that purpose in accordance with SECTION 2.5 of ARTICLE II of
these Bylaws. Any director elected in accordance with the preceding sentence of
this SECTION 3.16 shall hold office for the remainder of the full term of the
class of directors in
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which the new directorship was created or the vacancy occurred and until such
successor shall have been elected and qualified.
SECTION 3.17. Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation or these Bylaws, the board of directors shall
have the authority to fix the compensation 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. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE 4
EXECUTIVE AND OTHER COMMITTEES
SECTION 4.1. Executive Committee. The board of directors may, by
resolution adopted by a majority of the entire board, designate annually one (1)
or more of its members to constitute members or alternate members of an
executive committee, which committee shall have and may exercise, between
meetings of the board, all the powers and authority of the board in the
management of the business and affairs of the corporation, including, if such
committee is so empowered and authorized by resolution adopted by a majority of
the entire board, the power and authority to declare a dividend and to authorize
the issuance of stock, and may authorize the seal of the corporation to be
affixed to all papers which may require it, except that the executive committee
shall not have such power or authority with reference to:
(a) amending the certificate of incorporation of the corporation;
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(b) adopting an agreement of merger or consolidation involving the
corporation;
(c) recommending to the stockholders the sale, lease or exchange of
all or substantially all of the property and assets of the corporation;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) adopting, amending or repealing any Bylaw;
(f) filling vacancies on the board or on any committee of the board,
including the executive committee;
(g) fixing the compensation of directors for serving on the board or
on any committee of the board, including the executive committee; or
(h) amending or repealing any resolution of the board which by its
terms may be amended or repealed only by the board.
SECTION 4.2. Other Committees. The board of directors may, by resolution
adopted by a majority of the entire board, designate from among its members one
or more other committees, each of which shall, except as otherwise prescribed by
law, have such authority of the board as may be specified in the resolution of
the board designating such committee. A majority of all the members of such
committee may determine its action and fix the time and place of its meetings,
unless the board shall otherwise provide. The board shall have the power at any
time to change the membership of, to increase or decrease the membership of, to
fill all vacancies in and to discharge any such committee, or any member
thereof, either with or without cause.
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SECTION 4.3. Procedure: Meetings; Quorum. Regular meetings of the
executive committee or any other committee of the board of directors, of which
no notice shall be necessary, may be held at such times and places as shall be
fixed by resolution adopted by a majority of the members thereof. Special
meetings of the executive committee or any other committee of the board shall be
called at the request of any member thereof. Notice of each special meeting of
the executive committee or any other committee of the board shall be sent by
mail, telegraph or telephone, or be delivered personally to each member thereof
not later than the day before the day on which the meeting is to be held, but
notice need not be given to any member who shall, either before or after the
meeting, submit a signed waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of such notice to
such member. Any special meeting of the executive committee or any other
committee of the board shall be a legal meeting without any notice thereof
having been given, if all the members thereof shall be present thereat. Notice
of any adjourned meeting of any committee of the board need not be given. The
executive committee or any other committee of the board may adopt such rules and
regulations not inconsistent with the provisions of law, the certificate of
incorporation of the corporation or these Bylaws for the conduct of its meetings
as the executive committee or any other committee of the board may deem proper.
A majority of the executive committee or any other committee of the board shall
constitute a quorum for the transaction of business at any meeting, and the vote
of a majority of the members thereof present at any meeting at which a quorum is
present shall be the act of such committee. In the absence or disqualification
of a member, the remaining members, whether or not a quorum, may fill a vacancy.
The executive committee or any other committee of the board of directors shall
keep written minutes of its proceedings, a copy of which is to be filed with the
secretary of the corporation, and shall report on such proceedings to the board.
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ARTICLE 5
NOTICES
SECTION 5.1. Method. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the tune when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
SECTION 5.2. Waiver. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE 6
OFFICERS
SECTION 6.1. Election, Qualification. The officers of the corporation
shall be chosen by the board of directors and shall be a president, one or more
vice presidents, a secretary and a treasurer. The board of directors may also
choose one or more assistant secretaries and assistant treasurers and such other
officers and agents as it shall deem necessary. Any number of offices may be
held by the same person, unless the certificate of incorporation or these Bylaws
otherwise provide.
SECTION 6.2. Salary. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
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SECTION 6.3. Term. Removal. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors.
SECTION 6.4. Resignation. Subject at all times to the right of removal as
provided in SECTION 6.3 of this ARTICLE 6, any officer may resign at any time by
giving notice to the board of directors, the president or the secretary of the
corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later date specified therein; provided that the president
or, in the event of the resignation of the president, the board of directors may
designate an effective date for such resignation which is earlier than the date
specified in such notice but which is not earlier than the date of receipt of
such notice; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 6.5. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term in the manner prescribed in these Bylaws for election to such
office.
SECTION 6.6. President. The president shall be the chief executive officer
of the corporation, shall preside at all meetings of the stockholders and the
board of directors, shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
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SECTION 6.7. Vice Presidents. In the absence of the president or, in the
event of their 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 by the directors, 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. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
SECTION 6.8. Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
SECTION 6.9. Assistant Secretary. The assistant secretary, or if there be
more than one, the assistant secretaries in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary
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and shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
SECTION 6.10. Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation. If required by the
board of directors, he shall give the corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
SECTION 6.11. Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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ARTICLE 7
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 7.1. Third-Party Actions. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) 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 or officer of another corporation, partnership,
joint venture, trust or other enterprise, against all expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his or her conduct was unlawful.
The corporation may indemnify any employee or agent of the corporation, or
any employee or agent serving at the request of the corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, in the manner and to the extent that it shall indemnify any director
or officer under this SECTION 7.1.
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SECTION 7.2. Derivative Actions. The corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against all expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such person's duty to
the corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
SECTION 7.3. Determination of Indemnification. Any indemnification under
SECTION 7.1 or 7.2 of this ARTICLE 7 (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth in SECTION 7.1 or 7.2 of this ARTICLE 7. Such determination shall be
made (i) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or,
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even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
SECTION 7.4. Right to Indemnification. Notwithstanding the other
provisions of this ARTICLE 7, to the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in SECTION 7.1 or 7.2 of
this ARTICLE 7, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
SECTION 7.5. Advance of Expenses. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation on behalf
of a director, officer, employee or agent in advance of the final disposition of
such action, suit or proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the corporation as
authorized in this ARTICLE 7.
SECTION 7.6. Indemnification Not Exclusive. The indemnification provided
by this ARTICLE 7 shall not be deemed exclusive of any other rights to which any
person seeking indemnification may be entitled under any law, 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, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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SECTION 7.7. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability 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 liability under the provisions of this
ARTICLE 7.
SECTION 7.8. Definitions of Certain Terms. For purposes of this ARTICLE 7,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article 7 with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
For purposes of this ARTICLE 7, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by such director, officer, employee or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good
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faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this ARTICLE 7.
SECTION 7.9. Liability of Directors. Notwithstanding any provision of the
Certificate of Incorporation or any other provision herein, no director shall be
personally liable to the Corporation or any stockholder for monetary damages for
breach of fiduciary duty as a director, except for any matter in respect of
which such director shall be liable under Section 174 of Title 8 of the Delaware
Code (relating to the Delaware General Corporation Law) or any amendment thereto
or successor provision thereto or shall be liable by reason that, in addition to
any and all other requirements for such liability, he (i) shall have breached
his duty of loyalty to the Corporation or its stockholders, (ii) shall not have
acted in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or
(iv) shall have derived an improper personal benefit.
ARTICLE 8
CERTIFICATES OF STOCK
SECTION 8.1. Certificates. Every holder of stock in the corporation shall
be entitled to have a certificate, signed by, or in the name of the corporation
by, the chairman or vice chairman of the board of directors, or the president or
a vice president and the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the corporation, certifying the number of shares
owned by him in the corporation.
SECTION 8.2. Facsimile Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile
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signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
SECTION 8.3. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 8.4. Transfers of Stock. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 8.5. Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or 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
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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. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
SECTION 8.6. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE 9
AFFILIATED TRANSACTIONS
SECTION 9.1. Validity. Except as otherwise provided for in the certificate
of incorporation and except as otherwise provided in this Bylaw, if SECTION 9.2
is satisfied, no contract or transaction between the corporation and any of its
directors, officers or security holders, or any corporation, partnership,
association or other organization in which any of such directors, officers or
security holders are directly or indirectly financially interested, shall be
void or voidable solely because of this relationship, or solely because of the
presence of the director, officer or security holder at the meeting authorizing
the contract or transaction, or solely because of his or their participation in
the authorization of such contract or transaction or vote at the meeting
therefor, whether or not such participation or vote was necessary for the
authorization of such contract or transaction.
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SECTION 9.2. Disclosure. Approval: Fairness. SECTION 9.1 shall apply only
if:
(a) the material facts as to the relationship or interest and as to the
contract or transaction are disclosed or are known:
(i) to the board of directors (or committee thereof) and it nevertheless
in good faith authorizes or ratifies the contract or transaction by a majority
of the directors present, each such interested director to be counted in
determining whether a quorum is present but not in calculating the majority
necessary to carry the vote; or
(ii) to the stockholders and they nevertheless authorize or ratify the
contract or transaction by a majority of the shares present at a meeting
considering such contract or transaction, each such interested person
(stockholder) to be counted in determining whether a quorum is present and for
voting purposes; or
(b) the contract or transaction is fair to the corporation as of the time
it is authorized or ratified by the board of directors (or committee thereof) or
the stockholders.
SECTION 9.3. Nonexclusive. This provision shall not be construed to
invalidate a contract or transaction which would be valid in the absence of this
provision.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.1. Dividends. Dividends upon the capital stock 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 in cash, in
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property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
SECTION 10.2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 10.3. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
SECTION 10.4. Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
SECTION 10.5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
SECTION 10.6. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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ARTICLE 11
AMENDMENTS
SECTION 11.1. Amendments. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted by a majority of the entire board of directors, at
any meeting of the board of directors if notice of such alteration, amendment,
repeal or adoption of new Bylaws be contained in the notice of such meeting. The
stockholders of the corporation shall have the power to adopt, amend or repeal
any provisions of the Bylaws only to the extent and in the manner provided in
the certificate of incorporation of the corporation.
ADOPTED BY THE BOARD OF DIRECTORS ON JUNE 10, 1993
/s/ Susan H. Rader
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Susan H. Rader, Secretary
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