1
EXHIBIT 3.3
AMENDED AND RESTATED
BYLAWS
OF
OCEAN ENERGY, INC.
ADOPTED JUNE 17, 1997
2
ARTICLE I
OFFICES
Section 1. The registered office of Ocean Energy, Inc. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. The Corporation may also have offices at such
other places both within and without the state of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of Directors shall be held at such place as may be fixed from time to time by
the Board of Directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders 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. At the annual
meeting, the stockholders shall elect by a plurality vote the Directors
pursuant to Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to a vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
At an annual meeting of the stockholders, 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 (i) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (ii) otherwise properly brought before the meeting
by or at the direction of the Board of Directors, or (iii) otherwise properly
brought before the meeting by a stockholder. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed to and
received at the principal executive offices of the Corporation not less than 80
days prior to the meeting; provided, however, that in the event that less than
90 days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day following the
date on which such notice of the date of the annual meeting was mailed or such
public disclosure made.
A stockholder's notice to the secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section 3.
-1-
3
The presiding officer of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with this Section 3, and if the
presiding officer should so determine, the presiding officer shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
Section 4. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) 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 (10) 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 5. Special meetings of the stockholders for any
purpose may be called only by the Chairman of the Board of Directors and shall
be called within 10 days after receipt of the written request of the Board of
Directors, pursuant to a resolution approved by a majority of the entire Board
of Directors. The business permitted to be conducted at any special meeting of
the stockholders is limited to the business brought before the meeting by the
Chairman or by the Secretary at the request of a majority of the entire Board
of Directors.
Section 6. 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 (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
Section 7. The holders of a majority of the stock issued,
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the 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 to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented.
Section 8. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting, except as otherwise
required by this Section 8, if the time and place thereof are announced at the
meeting at which the adjournment is taken. At such adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
except as provided to the contrary by statute, the Company's certificate of
incorporation or these Bylaws.
Section 10. 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.
Section 11. Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing of such stockholders.
-2-
4
Section 12. At each meeting of stockholders, the Chairman of
the Board of Directors shall preside, and the secretary shall keep records, and
in the absence of either such officer their duties shall be performed by the
person appointed as provided in Article V.
ARTICLE III
DIRECTORS
Number, Nomination, Removal
Section 1. The number of Directors shall be fixed from time
to time by the Board of Directors, but shall not be less than 2 nor more than
15 persons. The Directors shall be elected at the annual meeting of the
stockholders in accordance with the provisions of Section 2 of this Article,
and each Director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. 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 may be made by the
Board of Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally. Any
stockholder entitled to vote in the election of Directors generally may
nominate one or more persons for election as Directors at a meeting only if
written notice of such stockholder'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 80
days prior to the date of any annual or special meeting. In the event that the
date of such annual or special meeting was not publicly announced by the
Corporation by mail, press release or otherwise more than 90 days prior to the
meeting, notice by the stockholder to be timely must be delivered to the
secretary of the Corporation not later than the close of business on the tenth
day following the day on which such announcement of the date of the meeting was
communicated to the 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
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 be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the 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.
If the presiding officer of the meeting for the election of
Directors determines that a nomination of any candidate for election as a
Director at such meeting was not made in accordance with the applicable
provisions of these Bylaws, such nomination shall be void.
Section 3. 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 to elect additional Directors under specified circumstances,
newly created directorships resulting from any increase in the number of
Directors and any vacancy on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely 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. Any Director elected or chosen as provided herein shall
hold office until the sooner of the following events: (i) the expiration of the
term of the directorship to which he is appointed, (ii) such time as his
successor is elected and qualified or (iii) his resignation or removal. No
decrease in the number of Directors constituting the Board of Directors shall
shorten the term of an incumbent Director.
-3-
5
Section 4. Subject 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 to elect additional Directors under specified circumstances,
any Director may be removed from office only for cause by the stockholders in
the manner provided in this Section 4. At any annual meeting of the
stockholders of the Corporation or at any special meeting of the stockholders
of the Corporation, the notice of which shall state that the removal of a
Director or Directors is among the purposes of the meeting, the affirmative
vote of the holders of at least 66 2/3 percent of the combined voting power of
the outstanding shares of Voting Stock (as defined below), voting together as a
single class, may remove such Director or Directors for cause.
For the purpose of this Section 4, "Voting Stock" shall mean
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of Directors. In any vote required by or provided
for in this Section 4, each share of Voting Stock shall have the number of
votes granted to it generally in the election of Directors.
Section 5. The business of the Corporation shall be managed
by its Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Meetings of the Board of Directors
Section 6. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 7. Meetings of the Board of Directors may be held at
such time and place as shall be specified in a notice given in the manner
hereinafter provided, or as shall be specified in a written waiver signed by
all of the Directors.
Section 8. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time
be determined by the Board of Directors.
Section 9. Special meetings of the Board of Directors may be
called by the Chairman of the Board on 24 hours notice to each Director, either
personally or by mail, telecopy, or telegram; special meetings shall be called
by the president, chief executive officer or secretary in like manner and on
like notice on the written request of three Directors.
Section 10. Except as provided in these Bylaws to the
contrary, at all meetings of the board a majority of the total number of
Directors shall constitute a quorum for the transaction of business and the
vote of a majority of the Directors entitled to vote and present at a meeting
at which a quorum is present shall be the act of the Board of Directors, unless
the certificate of incorporation shall require a vote of a greater number. 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 11. 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 proceedings of the Board of Directors or committee.
Section 12. At all meetings of the Board of Directors,
business shall be transacted in such order as from time to time the Board of
Directors may determine.
At all meetings of the Board of Directors, the Chairman of the
Board of Directors shall preside, and in the absence of the Chairman his duties
shall be performed by the person appointed as provided in Article V.
-4-
6
The secretary of the Corporation (or an assistant secretary in
the absence of the secretary) shall act as secretary of the meeting of the
Board of Directors, but in the absence of the secretary and an assistant
secretary, the presiding officer may appoint any person to act as secretary of
the meeting.
Committees of Directors
Section 13. The Board of Directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one (1) or more of the Directors of the Corporation.
The board may designate one (1) or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence of disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the 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 (except pursuant to a resolution
relating to the issuance of capital stock pursuant to Section 151 of Title 8 of
the Delaware General Corporation Law); adopting an agreement of merger or
consolidation; recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets; recommending
to the stockholders the dissolution of the Corporation or a revocation of a
dissolution; or amending the bylaws of the Corporation and, unless the
resolution, certificate of incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
members as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 14. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors.
Compensation of Directors
Section 15. 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
or retainer 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 IV
NOTICES
Section 1. Whenever notice is required to be given to any
Director or stockholder pursuant to a statutory provision or the certificate of
incorporation or these bylaws, 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 time when the same shall be deposited in the United States
mail. Notice to Directors may also be given by telegram or telecopy.
Section 2. Whenever notice is required to be given pursuant to
a statutory provision or the certificate of incorporation or 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.
-5-
7
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a Chairman of the Board of Directors,
a chief executive officer, a president, a secretary and a treasurer. Any
number of offices may be held by the same person, unless the certificate of
incorporation or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after
each annual meeting of stockholders shall choose a Chairman of the Board of
Directors, a chief executive officer, a president, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other
officers and agents as it shall deem necessary, including one or more executive
vice presidents, senior vice presidents, vice presidents, assistant secretaries
and assistant treasurers. Any such additional officers shall hold their
offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors.
Section 4. The salaries of all officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
Section 5. 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.
The Chairman of the Board of Directors
Section 6. The Chairman of the Board of Directors of the
Corporation shall preside at all meetings of stockholders and the Board of
Directors. He shall have the authority to execute all documents and
instruments necessary to carry out the management of the business of the
Corporation. He shall perform such other duties and have such other powers as
usually appertain to the office or as the Board of Directors may from time to
time prescribe. In the absence of the Chairman of the Board of Directors, the
Board of Directors shall appoint another Director to preside at any meetings of
stockholders and the Board of Directors during such absence.
The Chief Executive Officer
Section 7. The Chief Executive Officer shall be the senior
officer of the Corporation and shall perform such duties and have such powers
as usually appertain to the office or as the Board of Directors may from time
to time prescribe.
The President
Section 8. The president of the Corporation 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 have the authority to execute all documents and instruments
necessary to carry out the management of the business of the Corporation. 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 this Corporation. He shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
-6-
8
The Executive Vice Presidents, Senior Vice Presidents and Vice Presidents
Section 9. In the absence of the president or in the event of
his inability or refusal to act, an executive vice president or, in the absence
of an executive vice president, a senior vice president or a vice president (in
either case in the order determined by the Board of Directors, or, if there be
no such determination, 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 imposed upon the president. The executive
vice presidents, senior vice presidents and vice presidents shall perform such
other duties and have such other powers as the president or Board of Directors
may from time to time prescribe.
The Secretary and the Assistant Secretary
Section 10. 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 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, if
any such seal be adopted by resolution of the Board of Directors, 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 thereof by his signature.
Section 11. 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 and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
The Treasurer and Assistant Treasurer
Section 12. 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.
Section 13. 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.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be
entitled to a certificate, signed by, or in the name of the Corporation by, the
president or a vice president and the secretary or an assistant secretary of
the Corporation, certifying the number of shares owned by him in the
Corporation. If the Corporation shall be authorized
-7-
9
to issue more than one class of stock or more than one series of any class, the
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation
Law of Delaware, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Where a certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee or, (2) by a
registrar other than the Corporation or its employee, any signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile 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.
Lost Certificates
Section 3. 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.
Transfers of Stock
Section 4. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by a 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.
Fixing Record Date
Section 5. 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 of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) 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.
Registered Stock Holders
Section 6. 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 at 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
-8-
10
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 VII
GENERAL PROVISIONS
Dividends
Section 1. 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
meetings, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. 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.
Annual Statement
Section 3. 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.
Checks
Section 4. 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.
Fiscal Year
Section 5. The fiscal year of the Corporation shall begin on
the first day of January of each year and end on the last day of December of
each year, unless otherwise determined by the Board of Directors.
Seal
Section 6. The corporate seal, if any such seal be adopted by
resolution of the Board of Directors in such form as the Board of Directors may
prescribe. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise placed thereon.
Interested Directors and Officers
Section 7.
(a) No contract or transaction between the Corporation
and one or more of its Directors or officers, or between the Corporation and
any other corporation, partnership, association, or other organization in which
one or more of its Directors or officers are Directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the Director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purposes, if;
-9-
11
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the board or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested Directors, even
though the disinterested Directors be less than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are
known to the shareholders entitled to vote thereon, and the contract
for 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 shareholder.
(b) Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed,
or new bylaws may be adopted by the affirmative vote of a majority of the
entire Board of Directors at any meeting and without the consent or vote of the
stockholders. These Bylaws may be altered, amended or repealed, or new bylaws
may be adopted by the stockholders at any regular meeting of the stockholders
or at any special meeting of the stockholders, if notice of such alteration,
amendment, repeal or adoption of new bylaws is contained in the notice of such
meeting, by the holders of at least 66 2/3% of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, considered for purposes of this Article VIII as one class.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 1. The Corporation shall, to the full extent
permitted by Section 145 of Title 8 of the General Corporation Law of the State
of Delaware, as amended from time to time, indemnify all officers and directors
of the Corporation whom it may indemnify pursuant thereto. The provisions of
this Article IX shall apply to acts or omissions occurring before or after the
adoption hereof. The right of indemnification herein provided for shall not be
exclusive of any other right to which any Director or officer may now or
hereafter be entitled under any statute, bylaw, agreement, vote of stockholders
or disinterested Directors or otherwise, shall continue as to a person who has
ceased to be such Director or officer entitled to indemnification pursuant to
this Article IX and shall inure to the benefit of the heirs, executors and
administrators of such Director or officer.
Section 2. 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 him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article IX or
of Section 145 of the General Corporation Law of the State of Delaware.
Section 3. The indemnification provided by this Article IX
shall be subject to all valid and applicable laws, and, in the event this
Article IX or any of the provisions hereof or the indemnification contemplated
hereby are found to be inconsistent with or contrary to any such valid laws,
the latter shall be deemed to control, and this Article IX shall be regarded as
modified accordingly and, as so modified, shall continue in full force and
effect.
-10-