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EXHIBIT 1.2
AMENDED AND RESTATED BYLAWS OF
QUEEN SAND RESOURCES, INC.
A DELAWARE CORPORATION
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BYLAWS OF
QUEEN SAND RESOURCES, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . 2
Section 4. Notice of Meetings and Adjourned Meetings . . . . . . . 2
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Certain Rules of Procedure Relating to Stockholder
Meetings . . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Voting . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 8. Action of Stockholders by Written Consent Without
Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
Section 9. Requests for Stockholder List and Corporation Records . 6
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2. Number of Directors; Term; Qualification . . . . . . . 7
Section 3. Election . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5. Place of Meetings . . . . . . . . . . . . . . . . . . . 8
Section 6. Regular Meetings . . . . . . . . . . . . . . . . . . . 8
Section 7. Special Meetings . . . . . . . . . . . . . . . . . . . 8
Section 8. Notice of Meetings . . . . . . . . . . . . . . . . . . 8
Section 9. Quorum and Manner of Acting . . . . . . . . . . . . . . 9
Section 10. Action by Consent; Participation by Telephone
or Similar Equipment . . . . . . . . . . . . . . . . . 9
Section 11. Resignation; Removal . . . . . . . . . . . . . . . . . 9
Section 12. Compensation of Directors . . . . . . . . . . . . . . . 10
ARTICLE IV COMMITTEES OF THE BOARD . . . . . . . . . . . . . . . . . . . 10
Section 1. Designation, Powers and Name . . . . . . . . . . . . . 10
Section 2. Meetings; Minutes . . . . . . . . . . . . . . . . . . . 11
Section 3. Compensation . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Action by Consent; Participation by Telephone
or Similar Equipment . . . . . . . . . . . . . . . . . 12
Section 5. Changes in Committees; Resignations; Removals . . . . . 12
ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2. Election and Term of Office . . . . . . . . . . . . . . 13
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Section 3. Removal and Resignation . . . . . . . . . . . . . . . . 14
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5. Salaries . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . 14
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . 15
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10. Treasurer . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11. Assistant Secretary or Treasurer . . . . . . . . . . . 17
ARTICLE VI CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC. . . . . . . . . . . . 18
Section 1. Contracts . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2. Checks, etc. . . . . . . . . . . . . . . . . . . . . . 18
Section 3. Loans . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4. Deposits . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1. Stock Certificates . . . . . . . . . . . . . . . . . . 19
Section 2. List of Stockholders Entitled to Vote . . . . . . . . . 20
Section 3. Stock Ledger . . . . . . . . . . . . . . . . . . . . . 21
Section 4. Transfers of Capital Stock . . . . . . . . . . . . . . 21
Section 5. Lost Certificates . . . . . . . . . . . . . . . . . . . 21
Section 6. Fixing of Record Date . . . . . . . . . . . . . . . . . 22
Section 7. Beneficial Owners . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 1. Declaration . . . . . . . . . . . . . . . . . . . . . . 22
Section 2. Reserve . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IX INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1. Indemnification . . . . . . . . . . . . . . . . . . . . 23
Section 2. Advancement of Expenses . . . . . . . . . . . . . . . . 23
Section 3. Non-Exclusivity . . . . . . . . . . . . . . . . . . . . 24
Section 4. Insurance . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5. Continuity . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE X SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XI WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XII AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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BYLAWS
OF
QUEEN SAND RESOURCES, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of Queen Sand
Resources, Inc. (hereinafter called the "Corporation") within the State of
Delaware shall be located at the location specified in the Corporation's
Certificate of Incorporation, as amended.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as may
otherwise be required by law, in such other place or places, within or without
the State of Delaware, as the Board of Directors of the Corporation
(hereinafter sometimes called the "Board") 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 stockholders of the
Corporation shall be held at the office of the Corporation in the State of
Delaware or at such other place, within or without the State of Delaware, as
may from time to time be fixed by the Board or specified or fixed in the
respective notices or waivers of notice thereof.
SECTION 2. ANNUAL MEETINGS. The annual meeting of stockholders of
the Corporation for the election of Directors and for the transaction of such
other business as may properly come before the meeting shall be held annually
on such date and at such time as may be fixed by the Board.
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SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders,
unless otherwise provided by law, may be called at any time only by the Board
pursuant to a resolution adopted by a majority of the then authorized number of
Directors (as determined in accordance with Section 2 of Article III of these
Bylaws), the Chairman of the Board or the President. Any such call must
specify the matter or matters to be acted upon at such meeting and only such
matter or matters shall be acted upon thereat.
SECTION 4. NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as may
otherwise be required by law, notice of each meeting of stockholders, annual or
special, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is the annual
meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
given, not less than ten (10) or more than sixty (60) days before the date of
said meeting, to each stockholder entitled to vote at such meeting. If mailed,
such notice shall be directed to the stockholder at his address as it appears
on the stock record of the Corporation, unless he shall have filed with the
Secretary a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address.
Notice of any adjourned meeting need not be given if the time and place to
which the meeting shall be adjourned were announced at the meeting at which the
adjournment was taken unless (i) the adjournment is for more than thirty (30)
days, (ii) the Board shall fix a new record date for any adjourned meeting
after the adjournment or (iii) these Bylaws otherwise require.
SECTION 5. QUORUM. At each meeting of stockholders of the
Corporation, the holders of a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be present or
represented by proxy to constitute a quorum for the transaction of business,
except as may otherwise be provided by law or the Certificate of Incorporation.
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If a quorum is present at a meeting of stockholders, the stockholders
represented in person or by proxy at the meeting may conduct such business as
may be properly brought before the meeting until it is finally adjourned, and
the subsequent withdrawal from the meeting of any stockholder or the refusal of
any stockholder represented in person or by proxy to vote shall not affect the
presence of a quorum at the meeting, except as may otherwise be provided by law
or the Certificate of Incorporation.
If, however, a quorum shall not be present or represented at any meeting
of the stockholders, the chairman of the meeting or holders of a majority of
the shares represented in person or by proxy shall have the power to adjourn
the meeting to another time, or to another time and place, without notice
(subject, however, to the requirements of Section 4 of Article II of these
Bylaws) other than announcement of adjournment at the meeting, and there may be
successive adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be represented. At
such adjourned meeting at which the requisite amount of shares entitled to vote
thereat shall be represented, any business may be transacted that might have
been transacted at the original meeting so adjourned.
SECTION 6. CERTAIN RULES OF PROCEDURE RELATING TO STOCKHOLDER
MEETINGS. All stockholder meetings, annual or special, shall be governed in
accordance with the following rules:
(i) Only stockholders of record will be permitted to present
motions from the floor at any meeting of stockholders.
(ii) The chairman of the meeting shall preside over and conduct
the meeting in a fair and reasonable manner, and all
questions of procedure or conduct of the meeting shall be
decided solely by the chairman of the meeting. The
chairman of the meeting shall have all power and
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authority vested in a presiding officer by law or practice
to conduct an orderly meeting. Among other things, the
chairman of the meeting shall have the power to adjourn or
recess the meeting, to silence or expel persons to insure
the orderly conduct of the meeting, to declare motions or
persons out of order, to prescribe rules of conduct and an
agenda for the meeting, to impose reasonable time limits
on questions and remarks by any stockholder, to limit the
number of questions a stockholder may ask, to limit the
nature of questions and comments to one subject matter at
a time as dictated by any agenda for the meeting, to limit
the number of speakers or persons addressing the chairman
of the meeting or the meeting, to determine and announce
when the polls shall be closed, to limit the attendance at
the meeting to stockholders of record, beneficial owners
of stock who present letters from the record holders
confirming their status as beneficial owners, and the
proxies of such record and beneficial holders, and to
limit the number of proxies a stockholder may name.
SECTION 7. VOTING. Except as otherwise provided in the Certificate
of Incorporation, at each meeting of stockholders, every stockholder of the
Corporation shall be entitled to one (1) vote for every share of capital stock
standing in his name on the stock records of the Corporation (i) at the time
fixed pursuant to Section 6 of Article VII of these Bylaws as the record date
for the determination of stockholders entitled to vote at such meeting, or (ii)
if no such record date shall have been fixed, then at the close of business on
the date next preceding the day on which notice thereof shall be given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. At each such meeting, every stockholder shall be
entitled to vote in person, or by proxy
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appointed by an instrument in writing executed by such stockholder or by his
duly authorized agent and bearing a date not more than three (3) years prior to
the meeting in question, unless said instrument provides for a longer period
during which it is to remain in force.
At all meetings of stockholders at which a quorum is present, all
matters (except as otherwise provided in Section 3 of Article III of these
Bylaws and except in cases where a larger vote is required by law, the
Certificate of Incorporation or these Bylaws or where a class vote is required
by law or the Certificate of Incorporation) shall be decided by a majority of
the votes cast at such meeting by the holders of shares present or represented
by proxy and entitled to vote thereon.
SECTION 8. ACTION OF STOCKHOLDERS BY WRITTEN CONSENT WITHOUT
MEETINGS. Unless otherwise provided in the Certificate of Incorporation, any
action required or permitted to be taken by stockholders for or in connection
with any corporate action 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 (i) 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 (ii) 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. Every written consent shall bear the date of signature of
each stockholder who signs the consent.
If action is taken by less than unanimous consent of stockholders and in
accordance with the foregoing, there shall be filed with the records of the
meetings of stockholders the writing or writings comprising such less than
unanimous consent. Prompt notice of the
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taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those who have not consented in writing, and a
certificate signed and attested to by the Secretary that such notice was given
shall be filed with the records of the meetings of the stockholders.
If action is taken by unanimous consent of stockholders, the writing or
writings comprising such unanimous consent shall be filed with the records of
the meetings of stockholders.
SECTION 9. REQUESTS FOR STOCKHOLDER LIST AND CORPORATION RECORDS.
Stockholders shall have those rights afforded under the DGCL to inspect for any
proper purpose the Corporation's stock ledger, list of stockholders and other
books and records, and make copies or extracts therefrom. Such request shall
be in writing in compliance with Section 220 of the DGCL. Information so
requested shall be made available for inspecting, copying or extracting during
usual business hours at the principal executive offices of the Corporation.
Each stockholder desiring photostatic or other duplicate copies of any of such
information requested shall make arrangements to provide the duplicating or
other equipment necessary in the city where the Corporation's principal
executive offices are located. Alternative arrangements with respect to this
Section 12 may be permitted in the discretion of the President of the
Corporation or by vote of the Board of Directors.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business of the Corporation shall be managed
by or under the direction of the Board. The Board may exercise all such
authority and powers of the Corporation and do all such lawful acts and things
as are not by law or otherwise directed or required to be exercised or done by
the stockholders.
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SECTION 2. NUMBER OF DIRECTORS; TERM; QUALIFICATION. Except as
required in the Certificate of Incorporation, the number of Directors which
shall constitute the whole Board of Directors shall from time to time be fixed
and determined by resolution of the Board of Directors. Except as required in
the Certificate of Incorporation, no decrease in the number of Directors
constituting the Board shall shorten the term of any incumbent Director.
Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, each Director shall hold office until the next annual meeting and
until his successor is elected and qualified, or until his earlier death,
resignation, disqualification or removal. Directors need not be residents of
the State of Delaware or stockholders of the Corporation.
SECTION 3. ELECTION. Except as required in the Certificate of
Incorporation, at each meeting of stockholders for the election of Directors at
which a quorum is present, the persons receiving a plurality of the votes of
the shares represented in person or by proxy and entitled to vote on the
election of Directors shall be elected Directors. All elections of Directors
shall be by written ballot, unless otherwise provided in the Certificate of
Incorporation.
SECTION 4. VACANCIES. Except as required in the Certificate of
Incorporation, in the case of any increase in the number of Directors or any
vacancy in the Board of Directors, such newly created directorship or vacancy
may be filled by vote of the stockholders at a meeting called for such purpose
or, unless the Certificate of Incorporation or these Bylaws provide otherwise,
by the affirmative vote of the majority of the remaining Directors then in
office, although less than a quorum, or by a sole remaining Director. Unless
the Certificate of Incorporation or these Bylaws provide otherwise, when one or
more Directors shall resign from the Board of Directors, effective at a future
date, the majority of Directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective.
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Any Director elected or chosen as provided herein shall serve for the remaining
term of the directorship to which appointed or until his successor is elected
and qualified or until his earlier death, resignation or removal.
SECTION 5. PLACE OF MEETINGS. Meetings of the Board shall be held at
the Corporation's office in the State of Delaware or at such other place,
within or without such State, as the Board may from time to time determine or
as shall be specified or fixed in the notice or waiver of notice of any such
meeting.
SECTION 6. REGULAR MEETINGS. Regular meetings of the Board shall be
held on such days and at such times as the Board may from time to time
determine and is publicized among the directors. Notice of regular meetings of
the Board need not be given except as otherwise required by law or these
Bylaws.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board or the President and shall be called by the
Secretary at the request of any two of the other Directors.
SECTION 8. NOTICE OF MEETINGS. Notice of each special meeting of the
Board (and of each regular meeting for which notice shall be required), stating
the time, place and purposes thereof, shall be mailed to each Director,
addressed to him at his residence or usual place of business, or shall be sent
to him by facsimile or overnight courier so addressed, or shall be given
personally or by telephone, on twenty-four (24) hours notice, or such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances. Notice of any such meeting need not be given
to any Director, however, if waived by him in writing or by facsimile, or if he
shall be present at the meeting, except when he is present for the express
purpose of objecting at the beginning of such meeting to the transaction of any
business because the meeting is not lawfully called or convened.
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SECTION 9. QUORUM AND MANNER OF ACTING. The presence of a majority
of the authorized number of Directors shall be necessary and sufficient to
constitute a quorum for the transaction of business at any meeting of the
Board. If a quorum shall not be present at any meeting of the Board, a
majority of 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. Except where a different vote is required by law, the act of
a majority of the Directors present at any meeting at which a quorum shall be
present shall be the act of the Board.
SECTION 10. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Any action required or permitted to be taken by the Board may be
taken without a meeting if all the Directors consent in writing to the adoption
of a resolution authorizing the action, unless otherwise restricted by the
Certificate of Incorporation or these Bylaws. The resolution and the written
consents thereto by the Directors shall be filed with the minutes of the
proceedings of the Board. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any one or more Directors may participate in any
meeting of the Board by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting of the Board.
SECTION 11. RESIGNATION; REMOVAL. Any Director may resign at any time
by giving written notice to the Corporation, provided, however, that written
notice to the Board, the Chairman of the Board, the President or the Secretary
shall be deemed to constitute notice to the Corporation. Such resignation
shall take effect upon receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
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Any Director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of Directors; provided, however, that when the holders of any
class or series are entitled by the Certificate of Incorporation to elect one
(1) or more Directors, then, in respect to the removal without cause of a
Director or Directors so elected, the required majority vote shall be of the
holders of the outstanding shares of such class or series and not of the
outstanding shares as a whole.
SECTION 12. COMPENSATION OF DIRECTORS. [The Board may, unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
provide for the payment to any of the Directors, other than officers or
employees of the Corporation, of a specified amount for services as a Director
and/or member of a committee of the Board, or of a specified amount for
attendance at each regular or special Board meeting or committee meeting, or of
both, and all Directors shall be reimbursed for expenses of attendance at any
such meeting; provided, however, that nothing herein contained shall be
construed to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.]
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 1. DESIGNATION, POWERS AND NAME. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate one or more
committees, including, if they shall so determine, an Executive Committee, each
such committee to consist of one or more of the Directors of the Corporation.
Each committee designated by the Board of Directors shall have and may
exercise such of the powers of the Board in the management of the business and
affairs of the Corporation as may be provided in such resolution or in these
Bylaws; provided, however, that no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation (except
that a committee may, to the extent authorized in the
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resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors pursuant to authority, if any, expressly vested in
the Board by the provisions of the Certificate of Incorporation, (i) 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 (ii) fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the Bylaws of the Corporation; and, provided further, that, unless the
resolution establishing the committee, the Certificate of Incorporation or
these Bylaws expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock or to adopt
a certificate of ownership and merger pursuant to Section 253 of the DGCL. The
committee may authorize the seal of the Corporation, if any, to be affixed to
all papers which may require it. 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. In the absence or
disqualification of a member of a committee, the member or members 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 to act
at the meeting in the place of any such absent or disqualified member.
SECTION 2. MEETINGS; MINUTES. Unless the Board of Directors shall
otherwise provide, upon designation of any committee by the Board, such
committee shall elect one of its members as chairman and may elect one of its
members as vice chairman and shall adopt
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rules of proceeding providing for, among other things, the manner of calling
committee meetings, giving notices thereof, quorum requirements for such
meetings, and the methods of conducting the same. Each committee of Directors
shall keep regular minutes of its proceedings and report the same to the Board
of Directors when required.
SECTION 3. COMPENSATION. Members of special or standing committees
may be allowed compensation if the Board of Directors shall so determine
pursuant to Section 12 of Article III of these Bylaws.
SECTION 4. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the Board of Directors, the Certificate of Incorporation or
these Bylaws shall otherwise provide, any action required or permitted to be
taken by any committee may be taken without a meeting if all members of the
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the members of the
committee shall be filed with the minutes of the proceedings of the committee.
Unless the Board of Directors, the Certificate of Incorporation or these Bylaws
shall otherwise provide, any one or more members of any such committee may
participate in any meeting of the committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting of the committee.
SECTION 5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The Board
shall have power, by the affirmative vote of a majority of the authorized
number of Directors, at any time to change the members of, to fill vacancies
in, and to discharge any committee of the Board. Any member of any such
committee may resign at any time by giving notice to the Corporation; provided,
however, that notice to the Board, the Chairman of the Board, the President,
the chairman of such committee or the Secretary shall be deemed to constitute
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notice to the Corporation. Such resignation shall take effect upon receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, acceptance of such resignation shall not be necessary to
make it effective. Any member of any such committee may be removed at any
time, with or without cause, by the affirmative vote of a majority of the
authorized number of Directors at any meeting of the Board called for that
purpose.
ARTICLE V
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior Vice
President), a Secretary and a Treasurer. The Board of Directors may appoint
such other officers and agents, including Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers, 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 by the Board. Any two or more offices,
other than the offices of President and Secretary, may be held by the same
person. No officer shall execute, acknowledge, verify or countersign any
instrument on behalf of the Corporation in more than one capacity, if such
instrument is required by law, by these Bylaws or by any act of the Corporation
to be executed, acknowledged, verified or countersigned by two or more
officers. The Chairman of the Board shall be elected from among the Directors.
With the foregoing exception, none of the other officers need be a Director,
and none of the officers need be a stockholder of the Corporation unless
otherwise required by the Certificate of Incorporation.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently practicable. Each officer shall hold office until
his successor shall have been elected or appointed and shall have been
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qualified or until his death or the effective date of his resignation or
removal, or until he shall cease to be a Director in the case of the Chairman
of the Board.
SECTION 3. REMOVAL AND RESIGNATION. Any officer or agent elected or
appointed by the Board of Directors may be removed, with or without cause, by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the Corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the Corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 4. VACANCIES. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors and, in the case of any vacancy in an office other than the
office of Chairman of the Board (if any) or President, by the President for the
unexpired portion of the term.
SECTION 5. SALARIES. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a Director.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
have such duties as the Board of Directors may prescribe. In the Chairman's
absence, such duties shall be attended to by the President.
SECTION 7. PRESIDENT. The President shall be the chief executive
officer of the Corporation, and, subject to the provisions of these Bylaws,
shall have general and active control of all of its business and affairs. The
President shall preside at all meetings of the Board of Directors and at all
meetings of the stockholders. The President shall have the
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power to (i) appoint and remove subordinate officers, agents and employees,
including Assistant Secretaries and Assistant Treasurers, except that the
President may not remove those elected or appointed by the Board of Directors,
and (ii) delegate and determine their duties. The President shall keep the
Board of Directors and the Executive Committee (if any) fully informed and
shall consult them concerning the business of the Corporation. The President
may sign, with the Secretary or another officer of the Corporation thereunto
authorized by the Board of Directors, certificates for shares of the
Corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts
or other instruments the issue or execution of which shall have been authorized
by resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these Bylaws or by the Board
of Directors to some other officer or agent of the Corporation, or shall be
required by law to be otherwise executed. The President shall vote, or
authorize any other officer of the Corporation to vote, all shares of stock of
any other corporation standing in the name of the Corporation either in person
or by proxy. The President shall, in general, perform all other duties
normally incident to or as usually appertain to the office of President and
such other duties as may be prescribed by these Bylaws, the stockholders, the
Board of Directors or the Executive Committee (if any) from time to time.
SECTION 8. VICE PRESIDENTS. In the absence of the President, or in
the event of his inability or refusal to act, the Executive Vice President (or
in the event there shall be no Vice President designated Executive Vice
President, any Vice President designated by the Board) shall perform the duties
and exercise the powers of the President. Any Vice President may sign, with
the Secretary or Assistant Secretary or with the Treasurer or Assistant
Treasurer, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments the issue or
execution of which shall have been authorized by resolution of the Board of
Directors, except in cases where the
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signing and execution thereof has been expressly delegated by these Bylaws or
by the Board of Directors to some other officer or agent of the Corporation, or
shall be required by law to be otherwise executed. Vice Presidents shall
perform such other duties as from time to time may be assigned to them by the
Chairman of the Board (if any), the President, the Board of Directors or the
Executive Committee (if any).
SECTION 9. SECRETARY. The Secretary shall (i) record the proceedings
of the meetings of the stockholders, the Board of Directors and committees of
Directors in the permanent minute books of the Corporation kept for that
purpose, (ii) see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law, (iii) be custodian of the
corporate books and records and of the seal of the Corporation, and see that
the seal of the Corporation or a facsimile thereof is affixed to all
certificates for shares of the Corporation prior to the issue thereof and to
all documents, the execution of which on behalf of the Corporation under its
seal is duly authorized in accordance with the provisions of these Bylaws, (iv)
keep or cause to be kept a register of the post office address of each
stockholder which shall be furnished by such stockholder, (v) sign with the
Chairman of the Board (if any), the President, or an Executive Vice President
or Vice President, certificates for shares of the Corporation and any deeds,
bonds, mortgages, contracts, checks, notes, drafts or other instruments the
issue or execution of which shall have been authorized by resolution of the
Board of Directors, except in cases where the signing and execution thereof has
been expressly delegated by these Bylaws or by the Board of Directors to some
other officer or agent of the Corporation, or shall be required by law to be
otherwise executed, (vi) have general charge of the stock transfer books of the
Corporation and (vii) in general, perform all duties normally incident to the
office of Secretary and such other duties as from time to time may be assigned
by the Chairman of the Board (if any), the President, the Board of Directors or
the Executive Committee (if any).
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SECTION 10. TREASURER. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors shall
determine. The Treasurer shall (i) have charge and custody of and be
responsible for all funds and securities of the Corporation, receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever, and deposit all such monies in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Section 4 of Article VI of these Bylaws, (ii) prepare,
or cause to be prepared, for submission at each regular meeting of the Board of
Directors, at each annual meeting of the stockholders and at such other times
as may be required by the Board of Directors, the Chairman of the Board (if
any), the President or the Executive Committee (if any), a statement of
financial condition of the Corporation in such detail as may be required, (iii)
sign with the Chairman of the Board (if any), the President, or an Executive
Vice President or Vice President, certificates for shares of the Corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments the issue or execution of which shall have been authorized by
resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these Bylaws or by the Board
of Directors to some other officer or agent of the Corporation, or shall be
required by law to be otherwise executed and (iv) in general, perform all the
duties incident to the office of Treasurer and such other duties as from time
to time may be assigned by the Chairman of the Board (if any), the President,
the Board of Directors or the Executive Committee (if any).
SECTION 11. ASSISTANT SECRETARY OR TREASURER. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or
by the Chairman of the Board (if any), the President, the Board of Directors or
the Executive Committee (if any). The Assistant
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Secretaries and Assistant Treasurers shall, in the absence of the Secretary or
Treasurer, respectively, or in their respective inability or refusal to act,
perform all functions and duties which such absent officers may delegate, but
such delegation shall not relieve the absent officer from the responsibilities
and liabilities of their office. The Assistant Secretaries or the Assistant
Treasurers may sign, with the Chairman of the Board (if any), the President or
Executive Vice President or Vice President, certificates for shares of the
Corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts
or other instruments the issue or execution of which shall have been authorized
by a resolution of the Board of Directors, except in cases where the signing
and execution thereof has been expressly delegated by these Bylaws or by the
Board of Directors to some other officer or agent of the Corporation, or shall
be required by law to be otherwise executed. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
SECTION 1. CONTRACTS. The Board may authorize any officer or
officers, agent or agents, in the name and on behalf of the Corporation, to
enter into any contract or to execute and deliver any instrument, which
authorization may be general or confined to specific instances; and, unless so
authorized by the Board, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge
its credit or to render it liable pecuniarily for any purpose or for any
amount.
SECTION 2. CHECKS, ETC. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation
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in such manner as shall from time to time be authorized by the Board, which
authorization may be general or confined to specific instances.
SECTION 3. LOANS. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board shall authorize.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as may be selected by or
in the manner designated by the Board. The Board or its designees may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as may be deemed expedient.
ARTICLE VII
CAPITAL STOCK
SECTION 1. STOCK CERTIFICATES. Each stockholder of the Corporation
shall be entitled to have, in such form as shall be approved by the Board, a
certificate or certificates signed by the Chairman of the Board or the
President and by either the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary (except that, when any such certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or any employee, the signatures of any such officers may be
facsimiles, engraved or printed), which may be sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed), certifying
the number of shares of capital stock of the Corporation owned by such
stockholder. In case any officer who has signed or whose facsimile signature
has been placed upon any such certificate shall have ceased to be such
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officer before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if he were such officer at the date of
its issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional, or other special rights of
each class of stock or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise stated in Section 202 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
SECTION 2. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make or cause to have prepared or made, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the
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time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
SECTION 3. STOCK LEDGER. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 2 of this Article VII or the books
and records of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
SECTION 4. TRANSFERS OF CAPITAL STOCK. Transfers of shares of
capital stock of the Corporation shall be made only on the stock record of the
Corporation by the holder of record thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power. The Board may make such
additional rules and regulations as it may deem expedient concerning the issue
and transfer of certificates representing shares or uncertificated shares of
the capital stock of the Corporation.
SECTION 5. LOST CERTIFICATES. The Board of Directors may direct a
new certificate to be issued in place of any certificate 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, 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 his legal representative, 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 or the issuance of such new certificate.
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SECTION 6. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividends or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which record date shall (i) not precede the date upon which the
resolution fixing the record date is adopted by the Board and (ii) not be more
than sixty days nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
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 (i) not precede the
date upon which the resolution fixing the record date is adopted by the Board
and (ii) not be more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board.
SECTION 7. BENEFICIAL OWNERS. 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 shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
ARTICLE VIII
DIVIDENDS
SECTION 1. DECLARATION. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the
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Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of capital stock,
subject to the provisions of the Certificate of Incorporation.
SECTION 2. RESERVE. 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 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 Board of Directors shall think conducive to the
interests of the Corporation, and the Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
SECTION 1. INDEMNIFICATION. The Corporation shall indemnify to the
full extent authorized or permitted by Section 145 of the DGCL any person (his
heirs, executors and administrators) made, or threatened to be made, a party to
any action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a Director or officer of
the Corporation or by reason of the fact that as such Director or officer, at
the request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
in any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees and agents of the Corporation other than
Directors and officers may be entitled by law.
SECTION 2. ADVANCEMENT OF EXPENSES. Expenses (including attorneys'
fees) incurred by an officer or Director of the Corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board
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of Directors 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
IX. Such expenses incurred by employees and agents of the Corporation other
than Directors and officers may be paid upon such terms and conditions, if any,
as the Board of Directors deems appropriate.
SECTION 3. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided for hereby shall not be deemed exclusive of any other rights
to which a person 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 4. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article IX.
SECTION 5. CONTINUITY. The indemnification and advancement of
expenses provided for in this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Director, officer, employee or agent of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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ARTICLE X
SEAL
The Corporation's seal, if any, shall be circular in form and shall
include the name of the Corporation, the state and year of its incorporation,
and the word "Seal." The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation
or these Bylaws to be given to any Director, member of a committee or
stockholder, 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. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
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.
ARTICLE XII
AMENDMENTS
These Bylaws or any of them may be amended or supplemented in any
respect at any time, either (a) at any meeting of stockholders, provided that
any amendment or supplement proposed to be acted upon at any such meeting shall
have been described or
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referred to in the notice of such meeting, or (b) at any meeting of the Board,
provided that any amendment or supplement proposed to be acted upon at any such
meeting shall have been described or referred to in the notice of such meeting
or an announcement with respect thereto shall have been made at the last
previous Board meeting, and provided further that no amendment or supplement
adopted by the Board shall vary or conflict with any amendment or supplement
adopted by the stockholders.
I, the undersigned, being the Secretary of the Corporation DO HEREBY
CERTIFY THAT the foregoing are the bylaws of said Corporation, as adopted by
the sole director of said Corporation as of the 5th day of May, 1997.
/s/ Bruce I. Benn
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Bruce I. Benn, Secretary
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