EXHIBIT 3.1
INDEX
BY-LAWS
As Amended through January 29, 2002
NOBLE AFFILIATES, INC.
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ARTICLE I OFFICES 1
ARTICLE II MEETINGS OF STOCKHOLDERS 1
ARTICLE III DIRECTORS 5
MEETINGS OF THE BOARD OF DIRECTORS 8
COMMITTEES OF DIRECTORS 9
COMPENSATION OF DIRECTORS 10
ARTICLE IV NOTICES 10
ARTICLE V OFFICERS 11
CHAIRMAN OF THE BOARD 12
THE PRESIDENT 12
THE VICE PRESIDENTS 12
THE SECRETARY AND ASSISTANT SECRETARIES 13
THE TREASURER AND ASSISTANT TREASURERS 13
ARTICLE VI INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS 14
ARTICLE VII CERTIFICATES OF STOCK 16
LOST CERTIFICATES 16
TRANSFERS OF STOCK 16
FIXING RECORD DATE 17
REGISTERED STOCKHOLDERS 18
ARTICLE VIII GENERAL PROVISIONS 18
DIVIDENDS 18
ANNUAL STATEMENT 19
CHECKS 19
FISCAL YEAR 19
SEAL 19
ARTICLE IX AMENDMENTS 19
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NOBLE AFFILIATES, INC.
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office of the Corporation shall be 100 West
Tenth Street, City of Wilmington, New Castle County, 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, either within or without the State of
Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of the 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(a). Annual meetings of stockholders shall be held on the
fourth Tuesday of April if not a legal holiday, and if a legal holiday, then on
the next secular day following, at 10:00 a.m. or at such other date and time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a Board
of Directors, and transact such other business as may properly be brought before
the meeting.
(b). At the 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 the 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 be properly brought before the
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meeting by or at the direction of the Board of Directors or (iii) otherwise (1)
be properly requested to be brought before the meeting by a stockholder of
record entitled to vote in the election of directors generally and (2)
constitute a proper subject to be brought before the meeting. In order for
business (other than the election of directors) to be properly brought before
the annual meeting of stockholders by a stockholder, the business (including
stockholder proposals under Securities and Exchange Commission Rule 14a-8) must
be legally proper, all applicable regulatory requirements complied with, and
written notice of such stockholder's intent to bring such matter before the
annual meeting of stockholders must be delivered, either by personal delivery or
by United States mail, postage prepaid, to the Secretary of the Corporation.
Such notice must be received by the Secretary not less than 120 calendar days
before the first anniversary of the release date of the previous year's annual
meeting proxy statement; provided, however, that in the event that (i) no annual
meeting was held in the previous year or (ii) the date of the annual meeting has
been changed by more than 30 days from the date of the previous year's meeting,
notice by the stockholder to be timely must be received no later than the close
of business on the tenth day following the earlier of the day on which notice of
the meeting date was mailed or public disclosure of the meeting date was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting of stockholders: (i) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (iii) the class and number of shares of the Corporation which are
owned by such stockholder and (iv) any material interest of the stockholder in
such business. No business brought by a stockholder shall be conducted at the
annual meeting of stockholders except in accordance with the procedures set
forth in this Section 2(b). The filing of a stockholder notice as required by
this Section 2(b) shall not, in and of itself, constitute the bringing of the
business described therein before the annual meeting. The chairman of the
meeting shall, if the facts warrant, determine that (1) the business proposed to
be brought before the meeting is not a proper subject therefor and/or (2) such
business was not properly brought before the meeting in accordance with the
provisions hereof, and if he should so determine, he shall declare to the
meeting that (1) the business proposed to be brought before the meeting is not a
proper subject thereof and/or (2) such business was not properly brought before
the meeting and shall not be transacted.
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 vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. 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
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ordinary business hours, for a period of at least ten days prior to the meeting,
at the principal place of business of the Corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. 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 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 at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
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 nor more than sixty days before the date
of the meeting to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, 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. Where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes, present
in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. 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. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which 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.
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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
(other than the election of directors), unless the question 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 question. Directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors. Where a
separate vote by a class or classes is required, the affirmative vote of the
majority of shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class.
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(a). Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
(b). Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this Section to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
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(c). Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 12. Either the Board of Directors or, in the absence of an
appointment of inspectors by the Board, the Chairman of the Board or the
President shall, in advance of each meeting of the stockholders, appoint one or
more inspectors to act at such meeting and make a written report thereof. In
connection with any such appointment, one or more persons may, in the discretion
of the body or person making such appointment, be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at any meeting of stockholders, the chairman of such
meeting shall appoint one or more inspectors to act at such meeting. Each such
inspector shall perform such duties as are required by law and as shall be
specified by the Board, the Chairman of the Board, the President or the chairman
of the meeting. Each such inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
Inspectors need not be stockholders. No director or nominee for the office of
director shall be appointed such an inspector.
ARTICLE III
DIRECTORS
Section 1(a). The number of regular Directors which shall constitute
the whole Board shall be not less than three nor more than fifteen. Within the
limits above specified, the number of regular Directors shall be determined by
resolution of the Board of Directors or by the stockholders at the annual
meeting.
(b). A person shall be eligible to be elected a regular Director until
the annual meeting next succeeding such person's 70th birthday.
(c). The regular Directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 2 of this Article, and each
regular Director elected shall hold office until his successor is elected and
qualified.
(d). All regular Directors who have served as such for not less than
ten successive years at the time of the annual meeting next succeeding their
70th birthday shall automatically become Directors Emeritus to serve at the
pleasure of the regular Board of Directors.
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(e). A Director Emeritus shall serve until his or her resignation as
such or until terminated by a majority vote of the regular Board.
(f). Directors Emeritus shall be entitled to attend and participate in
all regular or special meetings of the Board of Directors and shall be entitled
to all rights, privileges and perquisites of a regular Director except that such
Director Emeritus shall have no duty or obligation to attend Board meetings,
shall not be counted in determining a quorum, shall not serve on regular
committees of the Board, shall have no vote and shall receive no annual
compensation stipend.
(g). Directors need not be stockholders.
(h). 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 (i.e., any stockholder of record) 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, 90 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 date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth: (1) the name
and address of the stockholder who intends to make the nomination of the person
or persons to be nominated; (2) 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; (3) 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; (4) 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 (5) the written consent of each
nominee to serve as a director of the Corporation if so elected. The filing of a
stockholder notice as required by this Section 1(h) shall not, in and of itself,
constitute the making of the nomination(s) described therein. The chairman of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
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Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of regular Directors may be filled by a
majority of the regular Directors then in office, though less than a quorum, or
by a sole remaining regular Director, and the Directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no regular
Directors in office, then an election of regular Directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the regular Directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such Directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the Directors chosen by the Directors then in
office.
Section 3. The business of the Corporation shall be managed by its
regular 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 By-laws directed or required to be
exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Members of the Board, or any committee designated by such Board, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
Section 5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting 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 regular Directors.
Section 6. 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.
Section 7. Special meetings of the Board may be called by the President
on three days' notice to each Director, either personally or by mail, overnight
courier service or electronic or wireless means. Special meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of two regular Directors.
Section 8. At all meetings of the Board a majority of the regular
Directors shall constitute a quorum for the transaction of business and the act
of a majority of the regular Directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. 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.
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Section 9. Unless otherwise restricted by the Certificate of
Incorporation or these By-laws, 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 regular 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 or committee.
COMMITTEES OF DIRECTORS
Section 10. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the regular Directors of
the Corporation. The Board may designate one or more regular Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members 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; provided, no such committee shall have the power or authority in
reference to:
(a) approving or adopting, or recommending to the stockholders,
any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval; or
(b) adopting, amending or repealing any By-law.
Any such committee shall have such name or names as may be determined from time
to time by resolution adopted by the Board of Directors.
Section 11. Each committee shall keep written minutes of its meetings
and report the same to the Board of Directors when required.
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COMPENSATION OF DIRECTORS
Section 12. All 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. Regular Directors may
be paid an annual stipend or 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 IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-laws, 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 time when the same shall be deposited in the mail. Notice to
Directors may also be given by overnight courier service or electronic or
wireless means.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of the
By-laws, 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.
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ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a Chairman of the Board, a President, a Vice
President, a Secretary and a Treasurer. The Board may designate from time to
time either the Chairman of the Board or the President as the Chief Executive
Officer of the Corporation and may also choose additional Vice Presidents and
one or more Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these By-laws 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, a
President, one or more Vice Presidents, a Secretary and a Treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who 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.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed 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.
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CHAIRMAN OF THE BOARD
Section 6. The Chairman of the Board of Directors shall preside at
meetings of the Board of Directors and of the stockholders. He shall have
general power to execute bonds, mortgages, and other instruments requiring a
seal, under the seal of the Corporation, except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent. When the Board of Directors designates the Chairman as the
Chief Executive Officer of the Corporation he shall have general supervision,
direction 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. The Chairman shall have such other specific duties as shall be assigned
to him by the Board of Directors from time to time.
THE PRESIDENT
Section 7. The President, in the absence or disability of the Chairman
of the Board of Directors, shall preside at meetings of the Board of Directors
and of the stockholders and shall perform the duties and exercise the powers of
the Chairman of the Board of Directors. He shall have general power to execute
bonds, mortgages and other instruments requiring a seal under the seal of the
Corporation, 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. When designated as Chief Executive Officer of the Corporation, the
President shall have general supervision, direction 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; otherwise, he shall be the chief
operating officer of the Corporation and shall perform such other duties as may
be prescribed by the Board of Directors or by the Chairman of the Board of
Directors.
THE VICE PRESIDENTS
Section 8. In the absence of the President or in the event of his
inability or refusal to act, the Vice President (or in the event more than one
Vice President is elected, the Vice Presidents in the order designated, 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.
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THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. 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 10. 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 TREASURERS
Section 11. 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.
Section 12. 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. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) 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.
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Section 14. 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
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. The Corporation shall indemnify to the fullest extent
authorized by law any person made or threatened to be made a party to any action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director or officer of the Corporation or any
predecessor of the Corporation or serves or served any other enterprise as a
director, officer, employee or agent at the request of the Corporation or any
predecessor of the Corporation. The Corporation may indemnify any person made or
threatened to be made a party to any action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that such person,
or a person of whom such person is the legal representative, is or was an
employee or agent of the Corporation or any predecessor of the Corporation or
serves or served any other enterprise as a director, officer, employee or agent
at the request of the Corporation or any predecessor of the Corporation.
Section 2. Notwithstanding the other provisions of this Article VI, to
the extent that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 of this Article VI, 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 3. The rights conferred on any person by Section 1 of this
Article VI shall not be exclusive of any other right that such person may have
or hereafter acquire under any statute, provision of the Corporation's
Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors, or otherwise. All rights to indemnification under this
Article VI shall be deemed to be provided by a contract between the Corporation
and the director, officer, employee or agent who serves in such capacity at any
time while these By-laws and other relevant provisions of the Delaware General
Corporation Law and other applicable law, if any, are in
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effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
Section 4. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another enterprise against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement), whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
applicable provisions of the Delaware General Corporation Law.
Section 5. The Corporation may, in its discretion, pay the expenses
(including attorneys' fees) incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding in advance of its
final disposition; provided, however, that expenses (including attorneys' fees)
incurred by a present or former officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt by the Corporation of an undertaking by or on behalf
of such officer or director to repay all such amounts advanced if it should
ultimately be determined that such person is not entitled to be indemnified by
the Corporation under this Article VI or otherwise. Such expenses (including
attorneys' fees) incurred by present or former employees or agents of the
Corporation other than directors or officers may be so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.
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ARTICLE VII
CERTIFICATES OF STOCK
Section 1. 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 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 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 other 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
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.
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FIXING RECORD DATE
Section 5(a). 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, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of a meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b). In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any person seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary of
the Corporation, request the Board of Directors to fix a record date. The Board
of Directors shall promptly, but in all events within ten days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within ten days of the
date on which such a request was received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of stockholders meetings are recorded,
to the attention of the Secretary of the Corporation. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
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(c). In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action.
REGISTERED STOCKHOLDERS
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 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 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 VIII
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 meeting, 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.
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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 be fixed by
resolution of the Board of Directors.
SEAL
Section 6. 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.
ARTICLE IX
AMENDMENTS
Section 1. These By-laws may be altered, amended or repealed or new
By-laws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
By-laws be contained in the notice of such special meeting.