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EXHIBIT 4.2
BYLAWS
OF
PETROQUEST ENERGY, INC.
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of PetroQuest
Energy, Inc. (the "Corporation") will be in Lafayette, Louisiana. The Board of
Directors of the Corporation (the "Board of Directors") may elect to relocate
the principal office of the Corporation from time to time as it shall deem
necessary and proper.
Section 2. Other Offices. The Corporation may also have offices at
such other places within or 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. Place of Meetings. All meetings of the stockholders will
be held at the principal office of the Corporation, or at such other place
within or without the State of Delaware as may be determined by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meetings. An annual meeting of Stockholders shall
be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time; provided that each successive annual
meeting shall be held on a date within 13 months after the date of the preceding
annual meeting. Only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder of the Corporation. 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 and received at the principal executive offices of the Corporation, no
less than 60 days nor more than 120 days prior to the anniversary date of the
immediately preceding annual meeting; provided, however, that in the event that
the date of the annual meeting is changed by more than 30 days from such
anniversary date, notice by the
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stockholder to be timely must be received not later than the close of business
on the tenth day following the earlier of the date on which a written statement
setting forth the date of such meeting was mailed to stockholders or the date on
which it is first disclosed to the public. 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, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such proposal, (c) the
class and number of shares of the Corporation that are beneficially owned by the
stockholder, and (d) any material interest of the stockholder in such business.
In addition, if the stockholder's ownership of shares of the Corporation, as set
forth in the notice, is solely beneficial, documentary evidence of such
ownership must accompany the notice. Notwithstanding anything else in these
Bylaws to the contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this Section 2. The
presiding officer of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that any business that was not properly brought
before the meeting is out of order and shall not be transacted at the meeting.
Section 3. Notice of Annual Meeting. Written or printed notice of
the annual meeting, stating the place, day and hour thereof, will be served upon
or mailed to each stockholder entitled to vote thereat at such address as
appears on the books of the Corporation, not less than ten days nor more than
sixty days before the date of the meeting.
Section 4. Special Meeting. Except as otherwise required by law or
the Certificate of Incorporation, special meetings of the stockholders of the
Corporation may be called only by the Chairman of the Board of Directors (the
"Chairman of the Board"), the Chief Executive Officer, the President, the Board
of Directors by the written order of a majority of the entire Board of Directors
or upon the written request of stockholders owning not less than two-thirds of
the shares of capital stock of the Corporation issued, outstanding and entitled
to vote at such meeting delivered to the President or Secretary that states the
purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meeting. Written notice of a special
meeting of stockholders, stating the place, day and hour and purpose or purposes
thereof, will be served upon or mailed to each stockholder entitled to vote
thereat at such address as appears on the books of the Corporation, not less
than ten days nor more than sixty days before the date of the meeting.
Section 6. Business at Special Meeting. Business transacted at all
special meetings will be confined to the purpose or purposes stated in the
notice.
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Section 7. Stockholder List. At least ten days before each meeting
of stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, will be prepared by the
Secretary. Such list, for a period of ten days prior to such meeting, will be
kept on file at the registered office of the Corporation and will be subject to
inspection by any stockholder at any time during usual business hours. Such list
will also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any stockholder during the whole time of
the meeting.
Section 8. Quorum. The holders of at least one-half of the shares
of capital stock issued and outstanding and entitled to vote thereat,
represented in person or by proxy, will constitute a quorum at all meetings of
the stockholders for the transaction of business except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws. If, however, such quorum
is not present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, represented in person or 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. At
any such adjourned meeting at which a quorum is represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 9. Voting. Unless otherwise provided by law, the
Certificate of Incorporation or these Bylaws, each stockholder will have one
vote for each share of stock having voting power, registered in his name on the
books of the Corporation. When a quorum is present at any meeting, the vote of
the holders of a majority of the shares having voting power represented in
person or by proxy will decide any question brought before such meeting, unless
the question is one upon which, by express provision of law, the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision will govern and control the decision of such question. In the
case of a matter submitted for a vote of the stockholders as to which a
stockholder approval requirement is applicable under the stockholder approval
policy of any stock exchange or quotation system on which the capital stock of
the Corporation is traded or quoted, the requirements under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any provisions of the
Internal Revenue Code, in each case for which no higher voting requirement is
specified by the DGCL, the Certificate of Incorporation or these Bylaws, the
vote required for approval shall be the requisite vote specified in such
stockholder approval policy, the Exchange Act or Internal Revenue Code
provision, as the case may be (or the highest such requirement if more than one
is applicable). Unless otherwise provided in the Certificate of Incorporation or
these Bylaws in accordance with the DGCL, directors shall be elected by a
plurality of the votes cast by the holders of
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outstanding shares of capital stock of the Corporation entitled to vote in the
election of directors at a meeting of stockholders at which a quorum is present.
Section 10. Proxies. At any meeting of the stockholders every
stockholder having the right to vote will be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder or
his duly authorized attorney in fact and bearing a date not more than eleven
months prior to said meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation will
be managed by a Board of Directors. The Board of Directors may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
law, by the Certificate of Incorporation or these Bylaws directed or required to
be exercised or done by the stockholders.
Section 2. Number of Directors. The number of directors which
constitute the whole Board of Directors will be no more than twelve, as such
number shall be determined by resolution of the Board of Directors from time to
time; provided, however, that no decrease in the number of directors shall have
the effect of shortening the term of any incumbent director; provided further,
however, that from and after the first date as of which the Corporation has a
class or series of capital stock registered under the Exchange Act, the number
of directors which shall constitute the whole Board of Directors shall be not
less than three.
Section 3. Nomination. Only persons who are nominated in accordance
with the procedures set forth in these Bylaws shall be eligible to serve as
directors. Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders (a) by or at the direction
of the Board of Directors or (b) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section 3, who shall be entitled to vote for the election of directors at the
meeting and who complies with the notice procedures set forth in this Section 3.
Nominations by stockholders shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation (a) in the case of an annual meeting, not less than
60 days nor more than 120 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is changed by more than 30 days from such anniversary date,
notice by the
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stockholder to be timely must be so received not later than the close of
business on the tenth day following the earlier of the date on which a written
statement setting forth the date of such meeting was mailed to stockholders or
the date on which it is first disclosed to the public, and (b) in the case of a
special meeting at which directors are to be elected, not later than the close
of business on the tenth day following the earlier of the date on which a
written statement setting forth the date of such meeting was mailed to
stockholders or the date on which it is first disclosed to the public. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the Corporation's books, of such
stockholder and (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder and which are owned of record by such
stockholder; and (c) as to the beneficial owner, if any, on whose behalf the
nomination is made, (i) the name and address of such person and (ii) the class
and number of shares of the Corporation which are beneficially owned by such
person. At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the Secretary of
the Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee.
The presiding officer of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 3 and he shall so
declare to the meeting, and the defective nomination shall be disregarded.
Section 4. Election and Term. Subject to the requirements of the
Certificate of Incorporation, the directors of each class shall be elected at
the annual meeting of stockholders, except as provided in Section 5, and each
director elected shall hold office until the expiration of his term and until
his successor shall be elected and shall qualify. Directors need not be
residents of Delaware or stockholders of the Corporation.
Section 5. Vacancies. If any vacancy occurs in the Board of
Directors caused by death, resignation, retirement, disqualification, or removal
from office of any director, or otherwise, or if any new directorship is created
by an increase in the authorized number of directors, a majority of the
directors then in office, though less than a quorum, or a sole remaining
director, may choose a successor or fill the newly created directorship; and a
director so chosen shall hold office
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until his term expires and until his successor shall be duly elected and shall
qualify, unless sooner displaced.
Section 6. Resignation; Removal. Any director may resign at any
time. Unless otherwise prescribed by law or the Certificate of Incorporation, a
director may be removed from office only for cause and then only by the
affirmative vote of the holders of at least a majority of the voting power of
all outstanding shares of capital stock of the Corporation generally entitled to
vote in the election of directors, voting together as a single class. Except as
may otherwise be provided by law, cause of removal of a director shall be deemed
to exist only if: (i) the director whose removal is proposed has been convicted,
or where a director is granted immunity to testify where another has been
convicted, of a felony by a court of competent jurisdiction and such conviction
is no longer subject to direct appeal; (ii) such director has been found by the
affirmative vote of a majority of the entire Board of Directors at any regular
or special meeting of the Board of Directors called for that purpose or by a
court of competent jurisdiction to have been grossly negligent or guilty of
misconduct in the performance of his duties to the Corporation in a matter of
substantial importance to the Corporation; or (iii) such director has been
adjudicated by a court of competent jurisdiction to be mentally incompetent,
which mental incompetency directly affects his ability as a director of the
Corporation.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The Board of Directors may hold its first
meeting for the purpose of organization and the transaction of business, if a
quorum is present, immediately after and at the same place as the annual meeting
of the stockholders, and no notice of such meeting shall be necessary; or the
Board of Directors may meet at such place and time as is fixed by the consent in
writing of all the directors.
Section 2. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place either within or without the State
of Delaware and with such notice or without notice as is determined from time to
time by the Board of Directors.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the President or the Chairman of the Board on one
days notice to each director, either personally or by mail or telegram. Special
meetings will be called by the President or the Chairman of the Board in like
manner and on like notice upon the written request of a majority of the Board of
Directors.
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Section 4. Quorum and Voting. At all meetings of the Board of
Directors, a majority of the directors will be necessary and sufficient to
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 will be the
act of the Board of Directors, except as may be otherwise specifically provided
by law, the Certificate of Incorporation or these Bylaws. If a quorum is not
present at any meeting 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 is present.
Section 5. Telephone Meetings. The Board of Directors may hold
meetings in any manner permitted by law. Without limitation, at any meeting of
the Board of Directors, a director may attend by telephone, radio, television,
interactive media or similar means of communication by means of which all
participants can hear each other which permits him to participate in the
meeting, and a director so attending will be deemed present at the meeting for
all purposes including the determination of whether a quorum is present.
Section 6. Action by Written Consent. Any action required or
permitted to be taken by the Board of Directors or any committee of the Board of
Directors under applicable statutory provisions, the Certificate of
Incorporation, or these Bylaws, may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all the members of the
Board of Directors or such committee, as the case may be, and filed with the
minutes of the meetings of the Board of Directors or such committee, as the case
may be.
ARTICLE V
COMMITTEES
Section 1. Committees of Directors. The Board of Directors may
establish an Audit Committee and a Compensation Committee, and may establish an
Executive Committee and such other committees as may be established by
resolution of a majority of the whole Board of Directors. Each of such
committees shall consist of one or more members of the Board of Directors and
shall have a chairman that is selected by the Board of Directors. Members of
committees of the Board of Directors shall be elected annually by vote of a
majority of the Board of Directors. The Chief Executive Officer shall be an
ex-officio nonvoting member of each committee (except the Audit and Compensation
Committees) of which he is not an official voting member. With respect to any
committee (including the Audit and Compensation Committees) of which the Chief
Executive Officer is not an official voting member, the Chief Executive Officer
shall be given notice of all committee meetings at the same time notice is given
to committee members, and the Chief Executive Officer shall be afforded the
opportunity to speak at the committee meeting. Presence of a majority of the
committee members (not
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counting any ex-officio nonvoting members) shall constitute a quorum. Committees
may act by majority vote of the voting members present at a meeting. Each of
such committees shall have and may exercise such of the powers of the Board of
Directors in the management of the business and affairs of the Corporation as
may be provided in these Bylaws or by resolution of the Board of Directors. Each
of such committees may authorize the seal of the Corporation to be affixed to
any document or instrument. The Board of Directors may designate one or more
directors as alternate members of any such committee, who may replace any absent
or disqualified member at any meeting of such committee. Meetings of committees
may be called by the chairman of the committee by written, telegraphic or
telephonic notice to all members of the committee and the Chief Executive
Officer and shall be at such time and place as shall be stated in the notice of
such meeting. Any member of a committee may participate in any meeting by means
of conference telephone or similar communications equipment. In the absence or
disqualification of a member of any committee the chairman of such committee
may, if deemed advisable, appoint another member of the Board of Directors to
act at the meeting in the place of the disqualified or absent member. The
chairman of the committee may fix such other rules and procedures governing
conduct of meetings as he shall deem appropriate.
Section 2. Audit Committee. The Audit Committee shall consist of
not less than two members of the Board of Directors. The Audit Committee shall
be responsible for recommending to the entire Board of Directors engagement and
discharge of independent auditors of the financial statements of the
Corporation, shall review the professional service provided by the independent
auditors, shall review the independence of independent auditors, shall review
with the auditors the plan and results of the auditing engagement, shall
consider the range of audit and non-audit fees, shall review the adequacy of the
Corporation's system of internal audit controls, shall review the results of
procedures for internal auditing and shall consult with the internal auditor of
the Corporation with respect to all aspects of the Corporation's internal
auditing program. In addition, the Audit Committee shall direct and supervise
special investigations as deemed necessary by the Audit Committee.
Section 3. Compensation Committee. The Compensation Committee shall
consist of not less than two members of the Board of Directors. The Compensation
Committee shall recommend to the Board of Directors the compensation to be paid
to officers and key employees of the Corporation and the compensation of the
Board of Directors. Except as otherwise provided in any specific plan adopted by
the Board of Directors, the Compensation Committee shall be responsible for
administration of executive compensation plans, stock option plans and other
forms of direct or indirect compensation of officers and key employees, and each
member of the Compensation Committee shall have the power and authority to
execute and bind the Corporation to such documents,
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agreements and instruments related to such plans and compensation as are
approved by the Compensation Committee. In the alternative, the Compensation
Committee may authorize any officer of the Corporation to execute such
documents, agreements and instruments on behalf of the Corporation. In addition,
the Compensation Committee shall review levels of pension benefits and insurance
programs for officers and key employees.
Section 4. Other Committees. The Board of Directors may similarly
create other committees for such terms and with such powers and duties as the
Board of Directors deems appropriate except as provided to the contrary by law,
the Certificate of Incorporation, or these Bylaws.
Section 5. Advisory Directors. The Board of Directors may, by
majority vote, appoint one or more advisory directors. Advisory directors shall
serve at the Board of Directors' convenience solely to advise the Board of
Directors, and shall have no formal responsibilities. No advisory director shall
be entitled to vote at meetings of the Board of Directors, nor shall any
advisory director be counted when determining whether there is a quorum at
meetings of the Board of Directors. Advisory directors shall not be, by virtue
of their position as advisory directors, agents of the Corporation, and they
shall not have the power to bind the Corporation.
ARTICLE VI
COMPENSATION OF DIRECTORS
Directors, as such, shall receive such compensation for their
services and such reimbursement of expenses as shall be determined by the Board
of Directors.
ARTICLE VII
NOTICES
Section 1. Methods of Notice. Whenever any notice is required to be
given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation or these Bylaws, it will not be construed to
require personal notice, but such notice may be given in writing by mail
addressed to such stockholder or director at such address as appears on the
books of the Corporation, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail with postage
thereon prepaid. Notice to directors may also be given by telegram, by
facsimile, by telephone or in person, and notice given by such means shall be
deemed given at the time it is delivered.
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Section 2. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation or 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, will be deemed equivalent to the giving of such notice.
Attendance at any meeting will constitute a waiver of notice thereof except as
otherwise provided by law.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The officers of the Corporation will
consist of either a Chief Executive Officer or a President, Vice President and
Secretary, each of whom shall be elected by the Board of Directors. The Board of
Directors may also elect a Chairman of the Board, a Chief Executive Officer, a
Chief Operating Officer, additional vice presidents, a Treasurer, a Controller
and one or more assistant secretaries and assistant treasurers. Any two or more
offices may be held by the same person.
Section 2. Election and Qualification. The Board of Directors at
its first meeting after each annual meeting of stockholders will elect the
President, one or more Vice Presidents, a Secretary and a Treasurer, none of
whom need be a member of the Board of Directors.
Section 3. Other Officers and Agents. The Board of Directors may
elect or appoint such other officers, assistant officers and agents as it deems
necessary, who will hold their offices for such terms and shall exercise such
powers and perform such duties as determined from time to time by the Board of
Directors.
Section 4. Salaries. The salaries of all officers of the
Corporation will be fixed by the Board of Directors except as otherwise directed
by the Board of Directors.
Section 5. Term, Removal and Vacancies. The officers of the
Corporation will hold office until their resignation or their successors are
chosen and qualify. Any officer, agent or member of the Executive Committee
elected or appointed by the Board of Directors may be removed at any time by the
Board of Directors; provided, however, that such removal shall be without
prejudice to the contract rights, if any, of such removed party. If any such
office becomes vacant for any reason, the vacancy will be filled by the Board of
Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if one
is elected, shall preside at meetings of the Board of Directors and stockholders
and shall have such other powers and duties as may from time to time be
prescribed by duly adopted resolutions of the Board of Directors.
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Section 7. Chief Executive Officer. The Chief Executive Officer, if
one is elected, shall preside at meetings of the Board of Directors and
stockholders if there is no Chairman of the Board, and shall supervise and have
overall responsibility for the business, administration and operations of the
Corporation. In general, he shall perform all duties as from time to time may be
assigned to him by the Board of Directors. He shall from time to time make such
reports of the affairs of the Corporation as the Board of Directors may require.
Section 8. President. The President, if one is elected, shall,
subject to the Board of Directors, have general executive charge, management and
control of the properties and operations of the Corporation in the ordinary
course of its business with all such powers with respect to such
responsibilities including the powers of general manager; and the president
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The president shall have such other powers and duties as may from
time to time be prescribed by duly adopted resolution of the Board of Directors.
Section 9. Chief Operating Officer. The Chief Operating Officer, if
one is elected, shall perform such duties as the Board of Directors and Chief
Executive Officer or President, if one or the other is elected, may prescribe.
Section 10. Vice President. The Vice Presidents in the order
determined by the Board of Directors will, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and will
perform such other duties as the Board of Directors and President may prescribe.
Section 11. Secretary. The Secretary will attend all meetings of
the Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose and
will perform like duties for the standing committees when required. He will
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and will perform such other duties
as may be prescribed by the Board of Directors and President. He will keep in
safe custody the seal of the Corporation and, when authorized by the Board of
Directors, affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an assistant
secretary.
Section 12. Assistant Secretaries. The assistant secretaries in the
order determined by the Board of Directors will perform, in the absence or
disability of the Secretary, the duties and exercise the powers of the Secretary
and will perform such other duties as the Board of Directors and President may
prescribe.
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Section 13. Treasurer. The Treasurer will have the custody of the
corporate funds and securities and will keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and will
deposit all monies 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 will disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and will
render to the Board of Directors and President, whenever they may require it, an
account of all of his transactions as Treasurer and of the financial condition
of the Corporation.
Section 14. Assistant Treasurers. The Assistant Treasurers in the
order determined by the Board of Directors, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and will
perform such other duties as the Board of Directors and President may prescribe.
Section 15. Officer's Bond. If required by the Board of Directors,
any officer will give the Corporation a bond (to be renewed as the Board of
Directors may require) in such sum and with such surety or sureties as is
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.
ARTICLE IX
SHARES AND STOCKHOLDERS
Section 1. Certificates Representing Shares. The certificates
representing shares of capital stock of the Corporation will be numbered and
entered in the books of the Corporation as they are issued. They will exhibit
the holder's name and number of shares and will be signed by the Chief Executive
Officer, President or Vice-President and the Secretary or an Assistant
Secretary. The signature of any such officer may be facsimile if the certificate
is countersigned by a transfer agent or registered by a registrar, other than
the Corporation itself or an employee of the Corporation. In case any officer
who has signed or whose facsimile signature has been placed upon such
certificate has ceased to be such officer before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such officer
at the date of its issuance.
Section 2. Transfer of Shares. Upon surrender to the Corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it will 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. Notwithstanding
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foregoing, no transfer will be recognized by the Corporation if such transfer
would violate federal or state securities laws, the Certificate of
Incorporation, or any stockholders' agreements which may be in effect at the
time of the purported transfer. The Corporation may, prior to any such transfer,
require an opinion of counsel to the effect that any such transfer does not
violate applicable securities laws requiring registration or an exemption from
registration prior to any such transfer.
Section 3. Fixing Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of stockholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books be closed for a
stated period but not to exceed, in any case, sixty days. If the stock transfer
books are closed for the purpose of determining stockholders entitled to notice
of or to vote at a meeting of stockholders, such books must be closed for at
least ten days immediately preceding such meeting. In lieu of closing the stock
transfer books, the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders, such date, in any case, to be
not more than sixty days and, in case of a meeting of stockholders, not less
than ten days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders, or stockholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, will be the record date
for such determination of stockholders. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as herein
provided, such determination will apply to any adjournment thereof except where
the determination has been made through the closing of stock transfer books and
the stated period of closing has expired.
Section 4. Registered Stockholders. The Corporation is entitled to
recognize the exclusive right of a person registered on its books as the owner
of the share to receive dividends, and to vote as such owner, and for all other
purposes as such owner; and the Corporation is not 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 has express or other notice thereof, except
as otherwise provided by the laws of Delaware.
Section 5. Lost Certificate. 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 or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate to be
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lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representatives, to advertise the same
in such manner as it shall require and/or 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 or
destroyed.
ARTICLE X
GENERAL
Section 1. Dividends. The Board of Directors may from time to time
declare, and the Corporation pay, dividends on its outstanding shares of capital
stock in cash, in property, or in its own shares, except when the declaration or
payment thereof would be contrary to law, the Certificate of Incorporation or
these Bylaws. Such dividends may be declared at any regular or special meeting
of the Board of Directors, and the declaration and payment will be subject to
all applicable provisions of law, the Certificate of Incorporation and these
Bylaws.
Section 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 Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors may determine to be in the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
Section 3. Directors' Annual Statement. The Board of Directors will
present at each annual meeting and when called for by vote of the stockholders
at any special meeting of the stockholders, a full and clear statement of the
business and condition of the Corporation.
Section 4. Checks. All checks or demands for money and notes of the
Corporation will 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 5. Corporate Records. The Corporation will keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders giving the names and
addresses of all stockholders and the number and class of shares held by each.
All other books and records of the Corporation may be kept at such place or
places within or without the State of Delaware as the Board of Directors may
from time to time determine.
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Section 6. Seal. The corporate seal will have inscribed thereon the
name of the Corporation. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or reproduced.
Section 7. Amendment. The Board of Directors shall have the power
to make, alter, amend and repeal the Bylaws. Any Bylaws made by the Board of
Directors under the powers conferred hereby may be altered, amended or repealed
by the directors or by the stockholders; provided, however, that the Bylaws
shall not be altered, amended or repealed and no provision inconsistent
therewith shall be adopted by stockholder action without the affirmative vote of
at least two-thirds of the voting power of the then outstanding shares entitled
to vote generally in the election of directors, voting together as a single
class.
Section 8. Indemnification. Each director, officer and former
director or officer of the Corporation, and any person who may have served or
who may hereafter serve at the request of the Corporation as a director or
officer of another corporation in which it owns shares of capital stock or of
which it is a creditor, is hereby indemnified by the Corporation against
expenses actually and necessarily incurred by him in connection with the defense
of any action, suit or proceeding in which he is made a party by reason of being
or having been such director or officer, except in relation to matters as to
which he shall be adjudged in such action, suit or proceeding to be liable for
negligence or misconduct in the performance of duty. Such indemnification will
not be deemed exclusive of any other rights to which such director, officer or
other person may be entitled under any agreement, vote of stockholders, or
otherwise. Without limitation, nothing in this section shall limit any
indemnification provisions in the Certificate of Incorporation.
Adopted August 26, 1998
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