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EXHIBIT 3.4
BYLAWS
OF
PIONEER NATURAL RESOURCES COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of stockholders of
Pioneer Natural Resources Company (the "Corporation") 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.
SECTION 2. Annual Meeting. An annual meeting of stockholders
shall be held for the election of directors on such date in each year and at
such time as shall be designated by the Board of Directors. At such annual
meeting the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
A failure to hold the annual meeting at the designated time or to elect a
sufficient number of directors to conduct the business of the Corporation shall
not affect otherwise valid corporate acts or work a forfeiture or dissolution
of the Corporation, except as may be otherwise specifically provided by law.
If the annual meeting for election of directors is not held on the date
designated therefor, the directors shall cause the meeting to be held as soon
thereafter as convenient. Written notice of the annual meeting stating the
place, date and hour of the meeting 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. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
SECTION 3. Special Meeting. Unless otherwise prescribed by
law or by the Certificate of Incorporation, a special meeting of the
stockholders, for any purpose or purposes, may be called by either (i) the
Chairman, if there be one, or (ii) the President, (iii) any Vice President, if
there be one, (iv) the Secretary, or (v) any Assistant Secretary, if there be
one, and shall be called by any such officer at the request in writing of a
majority of the Board of Directors. Any such request shall state the
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purpose or purposes of the proposed meeting. 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. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation.
SECTION 4. Quorum and Adjournment. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, the
presence, in person or represented by proxy, of the holders of a majority of
the voting power of the shares of capital stock of the Corporation entitled to
vote on any matter shall constitute a quorum for the purpose of considering
such matter at a meeting of the stockholders. If a meeting of stockholders
cannot be organized because a quorum has not attended, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting at which the adjournment is taken of the time and
place of the adjourned meeting, until a quorum shall be present or represented.
When a meeting is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting at which a
quorum shall be present or represented, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 5. Conduct of Meetings of Stockholders. At each
meeting of the stockholders, the President, or, in his absence, a chairman
chosen by a majority vote of the stockholders present in person or represented
by proxy and entitled to vote thereat, shall preside and act as chairman of the
meeting. The Secretary or, in his absence, an Assistant Secretary, or, in the
absence of the Secretary and all Assistant Secretaries, a person whom the
chairman of such meeting shall appoint, shall act as secretary of such meeting
and keep the minutes thereof. The Board of Directors may adopt such rules and
regulations as it determines are reasonably necessary or appropriate in
connection with the organization and conduct of any meeting of the
stockholders.
SECTION 6. Vote Required. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws and in all matters other
than the election of directors, the affirmative vote of the holders of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the
stockholders. Directors of the Corporation shall be elected by a plurality
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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.
SECTION 7. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
SECTION 8. Stockholder List. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept open
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. In lieu of making and producing
such list, the Corporation may make the information therein available by any
other means permitted by law.
SECTION 9. Stock Ledger. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by Section 8 of this Article or the books of the Corporation,
or to vote in person or by proxy at any meeting of stockholders.
SECTION 10. Action by Written Consent. Unless otherwise
provided in the Certificate of Incorporation, any action required to be taken
at any annual or special meeting of stockholders of the Corporation, or any
action which may be taken at any annual or special meeting of stockholders of
the Corporation, 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 to its registered
office in the State
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of 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. 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 10 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 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
meetings of stockholders are recorded. 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.
ARTICLE II
DIRECTORS
SECTION 1. Board of Directors. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors. The number of directors that shall constitute the whole Board of
Directors of the Corporation shall be fixed by the affirmative vote of a
majority of the members at any time constituting the Board of Directors, and
such number may be increased or decreased from time to time; provided, however,
that no such decrease shall have the effect of shortening the term of any
incumbent director. Except as provided in Section 2 of this Article, directors
shall be elected by a plurality of the votes cast at the annual meetings of
stockholders, and each director so elected shall hold office until the next
annual meeting of stockholders and until his successor is duly elected and
qualified or until the earliest of his death, resignation or removal.
Directors need not be stockholders.
SECTION 2. Vacancies and Newly Created Directorships.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having the
right to vote as a single class may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the Certificate of Incorporation,
vacancies and newly created directorships of such class or classes or series
may be filled by a majority of the directors elected by such class or classes
or series thereof then in office, or by a sole remaining director so elected.
If at any time, by reason of death, resignation, removal or other cause, there
are no directors in office, then an election of
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directors may be held in the manner provided by the General Corporation Law of
the State of Delaware (the "General Corporation Law"). When one or more
directors shall resign from the Board, effective at a future date, a majority
of the directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each director
so chosen shall hold office as provided in this Section 2 in the filling of
other vacancies.
SECTION 3. Removal. Any director or the entire Board of
Directors of the Corporation may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at the election of
directors; provided, however, that whenever the holders of any class or series
of capital stock of the Corporation are entitled to elect one or more directors
by the provisions of the Certificate of Incorporation, the provisions of this
Section 3 shall apply, in respect of the removal without cause of a director or
directors so elected, to the vote of the holders of the outstanding shares of
such class or series of capital stock and not to the vote of the outstanding
shares as a whole.
SECTION 4. Resignation. Any director of the Corporation may
resign at any time by giving written notice of his resignation to the President
or the Secretary. Such resignation shall take effect at the date of receipt of
such notice by the President or the Secretary, or at any later time specified
therein. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 5. Compensation of Directors. The directors shall
receive such compensation for their services as the Board of Directors may from
time to time determine. No director shall be prevented from receiving
compensation for his services as a director by reason of the fact that he is
also an officer of the Corporation. All directors shall be reimbursed for
their reasonable expenses of attendance at each regular or special meeting of
the Board of Directors. Members of any committee of directors may be allowed
like compensation and reimbursement for expenses for serving as members of any
such committee and for attending committee meetings.
SECTION 6. Place of Meetings. The Board of Directors of the
Corporation may hold its meetings, both regular and special, either within or
without the State of Delaware.
SECTION 7. Regular Meetings. Promptly after each annual
election of directors, the Board of Directors shall meet for the purpose of the
election of officers and the transaction of other business, at the place where
such annual election is held. The Board of Directors may also hold other
regular meetings at such time or times and at
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such place or places as shall be designated by the Board of Directors from time
to time. Notice of regular meetings of the Board of Directors need not be
given.
SECTION 8. Special Meetings. Special meetings of the Board of
Directors may be called by the President or by a majority of the Board of
Directors. Notice shall be sent to the last known address of each director, by
mail, telegram, cable or telex, at least two days before the meeting, or oral
notice may be substituted for such written notice if received not later than
the day preceding such meeting. Special meetings shall be called by the
President or by the Secretary in like manner and on like notice at the written
request of a majority of directors, and the place and time of such special
meeting shall be as designated in the notice of such meetings.
SECTION 9. Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of
Directors a majority of the total number of directors in office shall
constitute a quorum for the transaction of business and the vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. 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 10. Conduct of Meetings of Board of Directors. At each
meeting of the Board of Directors the President or, in his absence, a director
chosen by a majority of the directors present, shall act as chairman of the
meeting. The Secretary or, in his absence, a person whom the chairman of such
meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 11. Meetings by Telephone Conference. Members of the
Board of Directors of the Corporation may participate in a meeting of such
Board of Directors 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, and participation in a meeting pursuant to this
Section 11 shall constitute presence in person at such meeting.
SECTION 12. Action by Written Consent. 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 of Directors or committee, as the case may be, consent thereto in writing
setting forth the action so taken, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors or committee.
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SECTION 13. Committees of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one 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
or 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, unless otherwise 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. Notwithstanding
the foregoing, no committee shall have the power or authority to take any of
the following actions:
(a) amend the Certificate of Incorporation (except that
a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of any series of
capital stock of the Corporation adopted by the Board of Directors as
permitted by the General Corporation Law, fix the designations and any
of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any other
class or classes of stock of the Corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the
shares of any series);
(b) adopt an agreement of merger or consolidation under
the General Corporation Law;
(c) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets;
(d) recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution; or
(e) amend the Bylaws of the Corporation.
In addition, unless the resolution of the Board of Directors
designating the committee expressly so provides, no such committee shall have
the power or authority to take any of the following actions:
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(i) declare a dividend;
(ii) authorize the issuance of stock; or
(iii) adopt a certificate of ownership and merger
pursuant to the General Corporation Law.
Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
SECTION 14. Interested Directors. 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 of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their
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 of
Directors or committee in good faith authorizes the contract or transaction by
the affirmative vote of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts
as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) 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 stockholders. 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 III
OFFICERS
SECTION 1. General. The officers of the Corporation shall
consist of a President, a Secretary and such other officers, including
assistant officers, as may be deemed necessary by the Board of Directors. Any
number of offices may be held by the
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same person, unless the Certificate of Incorporation or these Bylaws otherwise
provide. The Board of Directors at its first meeting held after each annual
meeting of stockholders shall elect the officers of the Corporation 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 of Directors.
The Board of Directors may delegate to the President, any Vice President, the
Secretary and the Treasurer the power to appoint or remove any subordinate
officers, agents or employees. Each officer of the Corporation shall hold his
office until his successor is elected and qualified or until the earliest of
his death, resignation or removal.
SECTION 2. Removal. Any officer may be removed, either with
or without cause, by the affirmative vote of a majority of the directors then
in office at a meeting called for that purpose, or, except in the case of any
officer elected by the Board of Directors, by any officer upon whom the powers
of removal may be conferred by the Board of Directors.
SECTION 3. Resignation. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to the
Corporation. Such resignation shall take effect at the date of receipt of such
notice by the Corporation, or at any later time specified therein. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 4. Vacancies. A vacancy in any office resulting from
death, resignation, removal or any other cause shall be filled for the
unexpired portion of the term in the manner prescribed in these Bylaws for
regular election or appointment to such office.
SECTION 5. Officers' Salaries. The salaries of the officers
shall be fixed from time to time by the Board of Directors, and no officer
shall be prevented from receiving a salary by reason of the fact that he is
also a director of the Corporation.
SECTION 6. President. The President shall be the chief
executive officer of the Corporation and shall in general supervise and control
all of the business and affairs of the Corporation. He shall preside at all
meetings of the stockholders and of the Board of Directors and shall perform
such other duties as may be assigned to him from time to time by the Board of
Directors. He may execute certificates for shares of the Corporation, any
deeds, mortgages, bonds, contracts or other instruments that the Board of
Directors has authorized to be executed, except in cases where the execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the Corporation or shall be required
by law to be otherwise signed and executed. In addition, the President shall
perform, under the direction and subject to the
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control of the Board of Directors, all such other duties as are incident to the
office of President and as may be prescribed by the Board of Directors from
time to time.
SECTION 7. Vice President. Each Vice President, if any, shall
perform, under the direction and subject to the control of the Board of
Directors and the President, the usual and customary duties incident to such
office (but not any unusual or extraordinary duties or powers conferred by the
Board of Directors upon the President) and such other duties as may be assigned
to him from time to time by the Board of Directors or the President.
SECTION 8. Secretary and Assistant Secretary. It shall be the
duty of the Secretary to attend all meetings of the stockholders and Board of
Directors and record correctly the proceedings held at such meetings in a book
suitable for that purpose. It shall also be the duty of the Secretary to
attest with his signature all stock certificates issued by the Corporation, to
keep a stock ledger in which shall be correctly recorded all transactions
pertaining to the capital stock of the Corporation and to attest with his
signature all deeds, conveyances or other instruments requiring the seal of the
Corporation. The Secretary shall have full power and authority on behalf of
the Corporation to execute any stockholders' consents and to attend and act and
to vote in person or by proxy at any meetings of the stockholders of any
corporation in which the Corporation may own stock, and at any such meetings
shall possess and may exercise any and all the rights and powers incident to
the ownership of such stock that as the owner thereof the Corporation might
have possessed and exercised if present. The Secretary shall also perform,
under the direction and subject to the control of the Board of Directors and
the President, the usual and customary duties incident to such office and such
other duties as may be assigned to him from time to time. The duties of the
Secretary may also be performed by any Assistant Secretary.
SECTION 9. Treasurer and Assistant Treasurer. The Treasurer
shall have the care and custody of all the funds and securities of the
Corporation that may come into his hands as Treasurer. He may endorse checks,
drafts and other instruments for the payment of money for deposit or collection
when necessary or proper and may deposit the same to the credit of the
Corporation in such bank or banks or depositary as the Board of Directors may
designate. In addition, he may endorse all commercial documents requiring
endorsements for or on behalf of the Corporation and may sign all receipts and
vouchers for the payments made to the Corporation. He shall enter regularly in
the books to be kept by him for that purpose a full and accurate account of all
monies received and paid by him on account of the Corporation and shall render
an account of his transactions to the Board of Directors as often as the Board
of Directors shall require. The Treasurer shall have full power and authority
on behalf of the Corporation to execute any stockholders' consents and to
attend and act and to vote in
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person or by proxy at any meetings of stockholders of any corporation in which
the Corporation may own stock, and at any such meetings shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock that as the owner thereof the Corporation might have possessed and
exercised if present. He shall when requested, pursuant to a vote of the Board
of Directors, give a bond to the Corporation for the faithful performance of
his duties, the expense of which bond shall be borne by the Corporation. The
Treasurer shall also perform, under the direction and subject to the control of
the Board of Directors and the President, the usual and customary duties
incident to such office and such other duties as may be assigned to him from
time to time. The duties of the Treasurer may also be performed by any
Assistant Treasurer.
SECTION 10. Delegation of Authority. In the case of any
absence of any officer of the Corporation or for any other reason that the
Board of Directors may deem sufficient, the Board of Directors may delegate
some or all of the powers or duties of such officer to any other officer or to
any director, employee, stockholder or agent for whatever period of time the
Board of Directors determines is necessary or appropriate.
ARTICLE IV
STOCK AND STOCK CERTIFICATES
SECTION 1. Stockholders Entitled to Certificates. Every
holder of stock in the Corporation shall be entitled to have a certificate
representing the number of shares owned by him signed by or in the name of the
Corporation by the President or a Vice President and by the Secretary or an
Assistant Secretary of the Corporation. Any and all the signatures 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, such certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or
registrar continued to discharge said office or function at the date of
issuance.
SECTION 2. Lost, Stolen or Destroyed Stock Certificates. The
Corporation may issue a new stock certificate in place of any certificate
theretofore issued by it which is 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 issuance of a new certificate or certificates, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require
that the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representative, give the Corporation a bond sufficient to
indemnify the
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Corporation against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate.
SECTION 3. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent or agents of the Corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the certificate surrendered
to the Corporation and record the transaction upon its books.
SECTION 4. Fixing Record Date.
(a) Notice of Meeting; Vote. 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.
If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on
which the meeting is held. 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.
(b) Written Consent. 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.
If no record date has been fixed by the Board of Directors, 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 the General Corporation 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 meetings of
stockholders are recorded. Delivery made to the Corporation's
registered office shall
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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 the General Corporation
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 day on which the Board of Directors adopts the
resolution taking such prior action.
(c) Dividend; Distribution; Allotment of Rights. 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. If no record
date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
SECTION 5. Registered Stockholders. Except as otherwise
required by law, the Corporation shall be entitled to recognize the exclusive
right of the person registered on its books as the owner of shares to receive
dividends in respect of such shares and to vote as the owner thereof, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof.
ARTICLE V
INDEMNIFICATION
SECTION 1. Indemnification and Advancement of Expenses.
(a) Indemnification in the Case of Proceedings Other
Than by or in the Right of the Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he 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 expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action,
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suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b) Indemnification in the Case of Proceedings By or in
the Right of the Corporation. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact
that he 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 expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) Indemnification for Expenses. To the extent that a
director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) or (b) of this Section 1, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Determination of Entitlement to Indemnification.
Any indemnification under paragraph (a) or (b) of this Section 1 (unless
ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
paragraph (a) or (b) of this Section 1. Such determination shall be
made (i)
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by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(ii) if such a quorum is not obtainable, or, even if obtainable and a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders.
(e) Advancement of Expenses. Expenses (including
attorneys' fees) incurred by an 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 of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Corporation as authorized in this Article V. Such
expenses (including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
SECTION 2. Indemnification and Advancement not Exclusive
Right. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article V shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 3. Insurance. The Corporation shall have power to
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 V.
SECTION 4. Certain Definitions. For purposes of this Article
V, references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries. In addition, for purposes of this
Article V, a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit
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plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation."
SECTION 5. Continuation. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article V shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Amendments. The Bylaws may be altered, amended or
repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such meeting of stockholders or Board of Directors, as the case may
be. All such amendments must be approved by either the holders of a majority
of the outstanding capital stock entitled to vote thereon or by a majority of
the entire Board of Directors then in office.
SECTION 2. Waiver of Notice. Whenever notice is required to
be given under any provision of the General Corporation Law, the Certificate of
Incorporation or these Bylaws, a written waiver, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting of stockholders, in
person or by proxy, or at a meeting of the Board of Directors or committee
thereof shall constitute a waiver of notice of such meeting, except when the
person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or these Bylaws.
SECTION 3. Fiscal Year. The fiscal year of the Corporation
shall end on the thirty-first day of December of each year, unless otherwise
provided by resolution of the Board of Directors.
SECTION 4. Offices. The registered office of the Corporation
in the State of Delaware shall be in care of The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. 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.
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