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BY-LAWS
OF
WRT ENERGY CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings. Except as otherwise provided
in these By-laws, all meetings of the stockholders shall be held on such dates
and at such times and places, within or without the State of Delaware, as shall
be determined by the Board of Directors, or the Chairman of the Board of
Directors or the President and as shall be stated in the notice of the meeting
or in waivers of notice thereof. If the place of any meeting is not so fixed,
it shall be held at the registered office of the Corporation in the State of
Delaware.
Section 2. Annual Meeting. The annual meeting of
stockholders for the election of directors and the transaction of such other
proper business as may be brought before the meeting shall be held on such date
after the close of the Corporation's fiscal year, and at such time, as the
Board of Directors may from time to time determine.
Section 3. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, may be called by the Board of
Directors, or the Chairman of the Board of Directors or the President and shall
be called by the President or the Secretary upon the written request of a
majority of the directors or the holders of not less than sixty-six percent
(66%) of the Corporation's outstanding shares entitled to vote at such meeting.
The request shall state the date, time, place and purpose or purposes of the
proposed meeting.
Section 4. Notice of Meetings. Except as otherwise required
or permitted by law, whenever the stockholders are required or permitted to
take any action at a meeting, written notice thereof shall be given, stating
the place, date and hour of the meeting and, unless it is the annual meeting,
by or at whose direction it is being issued. The notice also shall designate
the place where the stockholders list is available for examination, unless the
list is kept at the place where the meeting is to be held. Notice of a special
meeting also shall state the purpose or
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purposes for which the meeting is called. A copy of the notice of any meeting
shall be delivered personally or shall be mailed, not less than ten (10) and
not more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at the meeting.
If mailed, the notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to each stockholder at such
stockholder's address as it appears on the records of the Corporation, unless
such stockholder shall have filed with the Secretary of the Corporation a
written request that such notices be mailed to some other address, in which
case it shall be directed to such other address. Notice of any meeting of
stockholders need not be given to any stockholder who shall attend the meeting,
other than for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall submit, either before or after the time stated therein,
a signed waiver of notice.
Unless the Board of Directors, after an adjournment is taken,
shall fix a new record date for an adjourned meeting or unless the adjournment
is for more than thirty (30) days, notice of an adjourned meeting need not be
given if the place, date and time to which the meeting shall be adjourned are
announced at the meeting at which the adjournment is taken. If, however, the
date of any adjourned meeting is more than thirty (30) days after the date for
which the meeting was originally noticed, or if a new record date is fixed for
the adjourned meeting, written notice of the place, date and time of the
adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 5. Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation of the Corporation, at all meetings of
stockholders the holders of a majority of the shares of the Corporation
entitled to vote, present in person or represented by proxy, shall constitute a
quorum for the transaction of business. Where a separate vote by a class,
classes or series is required, a majority of the outstanding shares of such
class, classes, or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that vote on that
matter, unless or except to the extent that the presence of a larger number may
be required by law or the Certificate of Incorporation. If a quorum shall fail
to attend any meeting, the chairman of the meeting may adjourn the meeting to
another place, date or time without notice other than announcement at the
meeting, until a quorum shall be present or represented.
Section 6. Voting. Except as otherwise provided by law or by
the Certificate of Incorporation of the Corporation, at any meeting of the
stockholders every stockholder of record having the right to vote thereat shall
be entitled to one vote for every share of stock standing in his name as of the
record date and entitling him to so vote. A stockholder may vote in person or
by proxy. Except as otherwise provided by law or by the Certificate of
Incorporation, any corporate action to be taken by a vote of the stockholders,
other than the election of directors, shall be authorized by the affirmative
vote of a majority of the shares present or represented by proxy at the meeting
and entitled to vote on the subject matter. Directors shall be elected as
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provided in Section 2 of Article III of these By-laws. Written ballots shall
not be required for voting on any matter unless ordered by the chairman of the
meeting.
Section 7. Proxies. Every proxy shall be executed in writing
by the stockholder or by his authorized representative, or otherwise as
provided in the General Corporation Law of the State of Delaware ("DGCL").
Section 8. List of Stockholders. For a period of 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 their addresses and the number of shares registered in their names
as of the record date shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. This list shall presumptively
determine the identity of the stockholders entitled to vote at the meeting and
the number of shares held by each of them.
Section 9. Conduct of Meetings. At each meeting of the
stockholders, the Chairman of the Board of Directors or, in his absence, one of
the following officers present in the order stated shall act as chairman of the
meeting: the President, the Vice Presidents in their order of rank and
seniority, or a chairman chosen by a majority of the directors present. The
Secretary, or, in his absence, an Assistant Secretary, or in the absence of the
Secretary and the Assistant Secretaries, any person appointed by the chairman
of the meeting shall act as Secretary of the meeting and shall keep the minutes
thereof. The order of business at all meetings of the stockholders shall be as
determined by the chairman of the meeting.
Section 10. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of Incorporation of the
Corporation, any action required to be taken or which may be taken at any
annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed, in person or by proxy, 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 in person or
by proxy and shall be delivered to the Corporation as required by law. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 11. Inspectors of Election. In advance of any
meeting of stockholders, the Board of Directors may appoint one or more
inspectors of election, who need not be stockholders, to act at such meeting or
any adjournment thereof. If inspectors of election are not so appointed, the
person presiding at any such meeting may, and on the request of any stockholder
entitled to vote at the meeting and before voting begins shall, appoint
inspectors of election. If any person who is appointed fails to appear or act,
the vacancy may be filled by appointment made by the Board of Directors in
advance of the meeting, or at the meeting by the
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person presiding at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take an oath faithfully to execute the duties of
inspector at such meeting.
If inspectors of election are appointed as aforesaid, they
shall determine from the lists referred to in Section 8 of this Article II the
number of shares outstanding, the shares represented at the meeting, the
existence of a quorum and the voting power of shares represented at the
meeting, determine the authenticity, validity and effect of proxies, receive
votes or ballots, hear and determine all challenges and questions in any way
arising in connection with the right to vote or the number of votes which may
be cast, count and tabulate all votes or ballots, determine the results, and do
such acts as are proper to conduct the election or vote with fairness to all
stockholders entitled to vote thereat. Unless waived by vote of the
stockholders conducted in the manner which is provided in Section 5 of this
Article, the inspectors shall make a report in writing of any challenge or
question matter which is determined by them, and execute a sworn certificate of
any facts found by them. The decision, act or certificate of a majority of the
inspectors of election shall be effective in all respects as the decision, act
or certificate of all the inspectors of election.
ARTICLE III
Board of Directors
Section 1. Number of Directors. Except as otherwise provided
by the Certificate of Incorporation of the Corporation, until such time as the
Board of Directors determines otherwise, the Board of Directors shall consist
of five (5) members, with the then-authorized number of directors being fixed
from time to time solely by or pursuant to a resolution passed by the Board of
Directors, provided, however, that from July 2, 1997 until July 2, 2000 there
shall be no more than and no less than five (5) directors. Effective July 2,
2000, the number of directors may be reduced or increased from time to time by
action of a majority of the whole Board, but no decrease may shorten the term
of an incumbent director. When used in these By-laws, the term "whole Board"
means the total number of directors which the Corporation would have if there
were no vacancies.
Section 2. Election and Term. Except as otherwise provided
by law, by the Certificate of Incorporation of the Corporation or by these
By-laws, the directors shall be elected at the annual meeting of the
stockholders and the persons receiving a plurality of the votes cast shall be
so elected. Subject to his earlier death, resignation or removal, each
director shall hold office until his successor shall have been elected and
shall have qualified.
Section 3. Removal. Except for such directors, if any, as
are elected by the holders of any series of Preferred Stock separately as a
class as provided for or fixed pursuant to the provisions of the Certificate of
Incorporation, any director of the Corporation may be removed from office only
for cause and only by the affirmative vote of the holders of not less than
sixty-six percent (66%) of the votes which could be cast by holders of all
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, considered for this purpose as one
class.
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Section 4. Resignations. Any director may resign at any time
by giving written notice of his resignation to the Corporation. A resignation
shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its receipt,
and, unless otherwise specified therein, the acceptance of a resignation shall
not be necessary to make it effective.
Section 5. Vacancies. Except as otherwise provided by the
Certificate of Incorporation of the Corporation, any vacancy in the Board of
Directors and newly created directorships, resulting from any increase in the
authorized number of directors or otherwise, may be filled only by the vote of
a majority of the directors then in office, although less than a quorum, or by
a sole remaining director. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
Section 6. Place of Meetings. Except as otherwise provided
in these By-laws, all meetings of the Board of Directors, both regular and
special, shall be held at such places, within or without the State of Delaware,
as the Board determines from time to time.
Section 7. Annual Meeting. The first meeting of each
newly-elected Board of Directors shall be held either (x) immediately following
the annual meeting of stockholders and no notice of such meeting shall be
necessary to be given the newly-elected directors in order legally to
constitute the meeting, provided a quorum shall be present, or (y) as soon as
practicable after the annual meeting of the stockholders on such date and at
such time and place as the Board of Directors determines from time to time. In
the event such annual meeting of stockholders is not so held, the annual
meeting of the Board of Directors shall be held on such date and at such time
and place as the Board determines from time to time.
Section 8. Regular Meetings. Regular meetings of the Board
of Directors shall be held on such dates and at such times and places as the
Board of Directors determines from time to time. Notice of regular meetings
need not be given, except as otherwise required by law.
Section 9. Special Meetings. Special meetings of the Board
of Directors, for any purpose or purposes, may be called by the Chairman of the
Board of Directors or the President and shall be called by the President or the
Secretary upon the written request of a majority of the directors. The request
shall state the date, time, place and purpose or purposes of the proposed
meeting.
Section 10. Notice of Meetings. Notice of each special
meeting of the Board (and of each annual meeting which is not held immediately
after, and in the same place as, the annual meeting of stockholders) shall be
given, not less than twenty-four (24) hours before the meeting is scheduled to
commence, by the Chairman of the Board of Directors, the President or the
Secretary and shall state the place, date and time of the meeting. Notice of
each meeting may be delivered to a director by hand or given to a director
orally (either by telephone or in person) or mailed, telegraphed or sent by
facsimile transmission to a director at his residence or usual place of
business, provided, however, that if notice of less than seventy-two (72) hours
is given it may not be mailed. If mailed, the notice shall be deemed given
when deposited in the United
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States mail, postage prepaid; if telegraphed, the notice shall be deemed given
when the contents of the telegram are transmitted to the telegraph service with
instructions that the telegram immediately be dispatched; and if sent by
facsimile transmission, the notice shall be deemed given when transmitted with
transmission confirmed. Notice of any meeting need not be given to any
director who shall submit, either before or after the time stated therein, a
signed waiver of notice or who shall attend the meeting, other than for the
express purpose of objecting at the beginning thereof to the transaction of any
business because the meeting is not lawfully called or convened. Notice of an
adjourned meeting, including the place, date and time of the new meeting, shall
be given to all directors not present at the time of the adjournment, and also
to the other directors unless the place, date and time of the new meeting are
announced at the meeting at the time at which the adjournment is taken.
Section 11. Quorum. Except as otherwise provided by law or
in these By-laws, at all meetings of the Board of Directors a majority of the
whole Board shall constitute a quorum for the transaction of business, and the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another place,
date and time.
Section 12. Conduct of Meetings. At each meeting of the
Board of Directors, the Chairman of the Board of Directors or, in his absence,
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, any person appointed by the chairman of the meeting shall act as
Secretary of the meeting and keep the minutes thereof. The order of business
at all meetings of the Board of Directors shall be as determined by the
chairman of the meeting.
Section 13. Committees of the Board. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate an executive committee and other committees, each consisting of one
or more directors. Each committee (including the members thereof) shall serve
at the pleasure of the Board of Directors and shall keep minutes of its
meetings and report the same to the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member or members at any meeting of the
committee. In addition, in the absence or disqualification of a member of a
committee, if no alternate member has been designated by the Board of
Directors, the member or members present at any meeting and not disqualified
from voting, whether or not they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. Except as limited by law, each committee,
to the extent provided in the resolution of the Board of Directors establishing
it, 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.
Section 14. Operation of Committees. A majority of all the
members of a committee shall constitute a quorum for the transaction of
business, and the vote of a majority of all the members of a committee present
at a meeting at which a quorum is present shall be the act
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of the committee. Each committee shall adopt whatever other rules of procedure
it determines to be necessary for the conduct of its activities.
Section 15. Consent to Action. 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, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 16. Attendance Other Than in Person. Members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at the meeting.
Section 17. Compensation. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, the Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
Officers
Section 1. General. The officers of the Corporation shall be
appointed by the Board of Directors and shall consist of a Chairman of the
Board or a President, or both, one or more Vice Presidents, a Treasurer and a
Secretary. The Board of Directors may also choose one or more Assistant
Secretaries and Assistant Treasurers and such other officers and agents as the
Board of Directors, in its sole and absolute discretion, shall deem necessary
or appropriate as designated by the Board of Directors from time to time. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-laws provide otherwise.
Section 2. Election; Term of Office. The Board of Directors
at its first meeting held after each annual meeting of stockholders shall elect
a Chairman of the Board or a President, or both, one or more Vice Presidents, a
Secretary and a Treasurer, and may also elect at that meeting or any other
meeting, such other officers and agents as it shall deem necessary or
appropriate. Each officer of the Corporation shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors together with the powers and duties which are customarily exercised
by such officer; and each officer of the Corporation shall hold office until
such officer's successor is elected and qualified or until such officer's
earlier resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. The Board of Directors may at any time,
with or without cause, by the affirmative vote of a majority of directors then
in office, remove an officer.
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Section 3. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the stockholders and the Board of Directors
and shall have such other duties and powers as may be prescribed by the Board
of Directors from time to time.
Section 4. President. The President shall be the chief
executive officer of the Corporation, shall have general and active management
of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
shall have and exercise such further powers and duties as may be specifically
delegated to or vested in the President from time to time by these By-laws or
the Board of Directors. In the absence of the Chairman of the Board or in the
event of his inability or refusal to act, or if the Board has not designated a
Chairman, the President shall perform the duties of the Chairman of the Board,
and when so acting, shall have the powers and be subject to all of the
restrictions upon the Chairman of the Board.
Section 5. Vice President. In the absence of the President
or in the event of his inability or refusal to act, the Vice President (or in
the event that there be more than one Vice President, the Vice Presidents in
the order designated by the Board of Directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. The Vice Presents shall perform
such other duties and have such other powers as the Board of Directors or the
President may from time to time prescribe.
Section 6. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings thereat in a book or books to be kept for that
purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given,
notice of meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or the President. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix same to any
instrument requiring it and when so affixed, it may be attested to by the
signature of the Secretary or by the signature of any such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest to the affixing by his or her
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or
filed are properly kept or filed, as the case may be.
Section 7. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep complete and accurate
accounts of all receipts and disbursements of the Corporation, and shall
deposit all monies and other valuable effects of the Corporation in its name
and to its credit in such banks and other depositories as may be designated
from time to time by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation, taking proper vouchers and receipts for such
disbursements, and shall render to the Board of Directors,
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at its regular meetings, or when the Board of Directors so requires, an account
of all his or her transactions as Treasurer and of the financial condition of
the Corporation. The Treasurer shall, when and if required by the Board of
Directors, give and file with the Corporation a bond, in such form and amount
and with such surety or sureties as shall be satisfactory to the Board of
Directors, for the faithful performance of his or her duties as Treasurer. The
Treasurer shall have such other powers and perform such other duties as the
Board of Directors or the President shall from time to time prescribe.
Section 8. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
Section 9. Resignations. Any officer may resign at any time
by giving written notice of his resignation to the Corporation. For purposes
of this Section, notice to the Board of Directors, the Chairman of the Board,
the President or the Secretary shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be specified therein,
immediately upon its receipt, and, unless otherwise specified therein, the
acceptance of a resignation shall not be necessary to make it effective.
Section 10. Removal. Any officer or agent may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting called for that purpose; provided, however, that the President may
remove any agent appointed by him.
Section 11. Vacancies. Any vacancy among the officers,
whether caused by death, resignation, removal or any other cause, shall be
filled in the manner which is prescribed for election or appointment to such
office.
ARTICLE V
Provisions Relating to Stock Certificates and Stockholders
Section 1. Certificates. Certificates for the Corporation's
capital stock shall be in such form as required by law and as approved by the
Board of Directors. Each certificate shall be signed in the name of the
Corporation by the Chairman of the Board of Directors, the President or any
Vice President and by the Secretary, the Treasurer, any Assistant Secretary or
any Assistant Treasurer and may bear the seal of the Corporation or a facsimile
thereof. Any or all of the signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who shall have signed or whose
facsimile signature shall have been placed on any certificate shall have ceased
to be such officer, transfer agent or registrar before the certificate shall be
issued, the certificate may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 2. Replacement Certificates. The Corporation may
issue a new certificate of stock in place of any certificate previously issued
by it, alleged to have been lost, stolen or
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destroyed, and the Board of Directors may require the owner of the lost, stolen
or destroyed certificate, or such person's legal representative, to make an
affidavit of that fact and to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss, theft or destruction of the certificate or the
issuance of such new certificate.
Section 3. Transfers of Shares. Transfers of shares shall be
registered on the books of the Corporation maintained for that purpose after
due presentation of the stock certificates therefor, appropriately endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
Section 4. Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or the allotment of any
rights, or for the purpose of any other 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 by the Board, and which record
date shall not be more than sixty (60) or less than ten (10) days before the
date of any such meeting, shall not be more than ten (10) days after the date
on which the Board fixes a record date for any such consent in writing, and
shall not be more than sixty (60) days prior to any other action.
Section 5. Dividends. To the extent permitted by law, the
Board of Directors shall have full power and discretion, subject to the
provisions of the Certificate of Incorporation of the Corporation and the terms
of any other corporate document or instrument binding upon the Corporation, to
determine what, if any, dividends or distributions, which may be paid in cash,
property, shares of the capital stock of the Corporation or any combination
thereof, shall be declared and paid or made.
ARTICLE VI
Indemnification
Section 1. Indemnification. To the fullest extent permitted
by the DGCL (including, without limitation, Section 145 thereof) or other
provisions of the laws of Delaware relating to indemnification of directors,
officers, employees and agents, as the same may be amended and supplemented
from time to time, the Corporation may indemnify any and all such persons whom
it shall have power to indemnify under the DGCL or such other provisions of
law.
Section 2. Statutory Indemnification. Without limiting the
generality of Section 1 of this Article VI, to the fullest extent permitted,
and subject to the conditions imposed, by law, and pursuant to Section 145 of
the DGCL:
(i) 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 such
person is or was a
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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, suit or
proceeding if such person 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; and
(ii) 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 such person 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 such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Corporation, except as otherwise provided by law.
Section 3. Indemnification by Resolution of Stockholders or
Directors or Agreement. In addition to the indemnification provided pursuant
to Section 2 of this Article VI, to the fullest extent permitted by law,
indemnification may be granted, and expenses may be advanced, to the persons
described in Section 145 of the DGCL or other provisions of the laws of
Delaware relating to indemnification and advancement of expenses, as from time
to time may be in effect, by (i) a resolution of stockholders, (ii) a
resolution of the Board of Directors, or (iii) an agreement providing for such
indemnification and advancement of expenses, provided that no indemnification
may be made to or on behalf of any person if a judgment or other final
adjudication adverse to the person establishes that such person's acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that such person
personally gained in fact a financial profit or other advantage to which such
person was not legally entitled. If it is subsequently determined that any
person who was indemnified or to whom expenses were advanced in accordance with
the provisions of this Article VI was not entitled to such indemnification or
advancement of expenses or both, by reason of the person having acted in bad
faith or with active and deliberate dishonesty, or having personally gained a
financial profit or other advantage to which such person was not legally
entitled or otherwise, then such person shall promptly reimburse the
Corporation for all such fees and expenses previously paid by the Corporation.
Section 4. General. It is the intent of this Article VI to
require the Corporation to indemnify the persons referred to herein for
judgments, fines, penalties, amounts paid in settlement and expenses (including
attorneys' fees), and to advance expenses to such persons, in each and every
circumstance in which such indemnification and such advancement of expenses
could lawfully be permitted by express provision of by-laws, and the
indemnification and expense advancement provided by this Article VI shall not
be limited by the absence of an
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express recital of such circumstances. The indemnification and advancement of
expenses provided by, or granted pursuant to, these By-laws shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled, whether as a matter of law, under any
provision of the Certification of Incorporation of the Corporation or these
By-laws, by agreement, by vote of stockholders or disinterested directors of
the Corporation or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
Section 5. Indemnification Benefits. Indemnification
pursuant to these By-laws shall inure to the benefit of the heirs, executors,
administrators and personal representatives of those entitled to
indemnification.
Section 6. Insurance and Trust Fund. In furtherance and not
in limitation of the powers conferred by statute:
(1) 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 serving at the request of the
corporation as 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 power to indemnify him against
such liability under the provisions of law; and
(2) the Corporation may create a trust fund, grant a
security interest and/or use other means (including, without
limitation, letters of credit, surety bonds, and/or other similar
arrangements), as well as enter into contracts providing
indemnification to the fullest extent permitted by law and including
as part thereof provisions with respect to any or all of the
foregoing, to ensure the payment of such amount as may become
necessary to effect indemnification as provided therein, or elsewhere.
ARTICLE VII
Approval of Certain Corporate Action
Section 1. Mergers, Consolidations, Etc. The affirmative
vote of at least a majority of the directors shall be required for the approval
of any (i) merger, (ii) consolidation, (iii) restructuring, (iv)
recapitalization, (v) issuance of Common Stock, (vi) sale of all or
substantially all of the assets of, or a majority of the capital stock of, any
"significant subsidiary" of the Corporation (as defined in Regulation S-X
promulgated by the Securities and Exchange Commission), if any, (vii)
repurchase by the Corporation of shares of capital stock or other securities of
the Corporation, or (viii) sale, transfer or other conveyance of assets outside
the ordinary course of business of the Corporation or any subsidiary.
Section 2. Agreements for the Payment of Fees. All
agreements for consulting services, employment agreements, or other agreements
for the payment of fees, in any case providing for payments by the Corporation
in excess of $125,000, shall be subject to the express approval of the Board of
Directors of the Corporation.
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ARTICLE VIII
General Provisions
Section 1. Seal. The Corporation's seal shall be in such
form as is required by law and as shall be approved by the Board of Directors.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 3. Voting Upon Shares Held by the Corporation.
Unless otherwise provided by law or by the Board of Directors, the Chairman of
the Board of Directors, if one shall be elected, or the President, if a
Chairman of the Board of Directors shall not be elected, acting on behalf of
the Corporation, shall have full power and authority to attend and to act and
to vote at any meeting of stockholders of any corporation in which the
Corporation may hold stock and, at any such meeting, shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock which, as the owner thereof, the Corporation might have possessed and
exercised, if present. The Board of Directors by resolution from time to time
may confer like powers upon any other person or persons.
Section 4. Checks, Drafts, Notes. All checks, drafts or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation, and in such manner as shall from
time to time be determined by resolution (whether general or special) of the
Board of Directors or may be prescribed by any officer or officers, or any
officer and agent jointly, thereunto duly authorized by the Board of Directors.
ARTICLE IX
Amendments
Section 1. By-laws. These By-laws may be adopted, amended or
repealed by the Board of Directors, provided the conferral of such power on the
Board shall not divest the stockholders of the power, or limit their power, to
adopt, amend or repeal these By-laws.
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