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EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
REVENGE MARINE, INC.
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE AND REGISTERED AGENT. The
registered office and registered agent shall be designated in duly adopted
actions of the Board of Directors. Each registered office and registered agent
may be changed from time to time by a duly adopted action of the Board of
Directors, and the Corporation shall file an appropriate statement of change of
registered office or registered agent promptly after the taking of such action
in accordance with applicable law.
SECTION 1.02. OTHER OFFICES. The Corporation may also have offices
at such other places within or without the state of incorporation of the
Corporation as the Board of Directors may from time to time determine or the
business of the Corporation requires.
ARTICLE II
SHAREHOLDERS
SECTION 2.01. PLACE OF MEETING. All meetings of the shareholders of
the Corporation shall be held at the principal executive office of the
Corporation unless otherwise determined by the Board of Directors and specified
in the notice of meeting, in which event the meeting shall be held at the place
within or without the state of incorporation as shall be designated in the
notice of such meeting.
SECTION 2.02. ANNUAL MEETING. The Board of Directors may fix the
date and time of the annual meeting of the shareholders, but if no such date and
time is fixed by the Board, the annual meeting shall be held on a third Tuesday
in May, if not a legal holiday, and if a legal holiday, then on next succeeding
business day, at 10:00 a.m. local time. At the annual meeting, the shareholders
then entitled to vote shall elect directors and shall transact such other
business as may properly be brought before the meeting.
SECTION 2.03. SPECIAL MEETINGS. Special meetings of the
shareholders of the Corporation may be called for any purpose for which meetings
may lawfully be called at any time by the Chairman of the Board, if one is
elected, or by the President or by a majority of the Board of Directors, and
shall be called after the Corporation's receipt of the request in writing of
shareholders owning one-fourth of the amount of the entire capital stock of the
Corporation issued and outstanding
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and entitled to vote. Every request for a special meeting shall state the
specific purpose or purposes of the meeting. The date of the meeting shall be
held at such date and time as the Chairman of the Board may fix, not less than
10 nor more than 60 days after the receipt of the request, and the Secretary
shall give due notice thereof. If the Chairman of the Board shall neglect or
refuse to fix the time and date of such meeting and cause the Secretary to give
notice thereof, the person or persons calling the meeting may do so.
SECTION 2.04 Notice of Meetings. Written notice of the place,
date and hour of every meeting of the shareholders, whether annual or
special, shall be given to each shareholder of record entitled to vote at
the meeting not less than 10 nor more than 60 days before the date of the
meeting. Every notice of a special meeting shall state the purpose or
purposes thereof.
SECTION 2.05 Quorum and Adjourned Meeting. The record holders
of a majority of the stock issued and outstanding (not including treasury
stock) and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders for
the transaction of business, except as otherwise provided by law, by the
Corporation's Certificate of Incorporation or by these Bylaws. If,
however, such quorum shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in
person or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally notified. When a quorum
is present at any meeting, the vote of the holders of the majority of the
stock having voting power present in person or represented by proxy shall
decide all questions brought before such meeting, unless the question is
one upon which, by expressed provision of applicable law, the
Corporation's Certificate of Incorporation or these Bylaws, a different
vote is require, in which case such expressed provision shall govern and
control the decision of such question. The shareholders present in person
or represented by proxy at a duly organized meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding
withdrawal of enough shareholders to leave less than a quorum.
SECTION 2.06. Conduct of Meetings. All annual and special
meetings of shareholders shall be conducted in accordance with such rules
and procedures as the Board of Directors may determine subject to the
requirements of applicable law and, as to matters not governed by such
rules and procedures, as the chairman of such meetings shall determine.
The chairman of any annual or special meeting of shareholders shall be
Chairman of the Board or in his absence, the President of the Corporation.
The Secretary, or in the absence of the Secretary, a person designated by
the chairman set all as secretary of then meeting.
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SECTION 2.07. VOTING. At every meeting of the shareholders, each
shareholder shall be entitled to one vote in person or by proxy for each share
of capital stock having voting power held of record by such shareholder. No
proxy shall be voted more than three years after its date, unless the proxy
specifically provides for a longer period.
SECTION 2.08. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any
action required or permitted to be taken at any annual or special meeting of
shareholders of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent in writing setting forth the action so
taken shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize the taking of
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of action by the shareholders
without a meeting by less than unanimous written consent shall be given to
those shareholders entitled to vote on the action who did not consent in
writing to such action.
SECTION 2.09. VOTING LISTS. At least ten (10) days before every meeting
of shareholders, the Secretary shall cause the Corporation to prepare a complete
list of the shareholders entitled to vote at the meeting. The list shall be
arranged in alphabetical order showing the address of each shareholder and the
number of shares registered in the name of each shareholder. Such list shall be
open to the examination of any shareholder for any lawful purpose during
ordinary business hours for a period of at least ten (10) days prior to the
meeting either at the principal executive office of the Corporation or at the
place where the meeting is to be held. The list shall also be available and open
for inspection during the whole time of the meeting and may be inspected by any
shareholder or authorized representative who is present.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. POWERS. The Board of Directors shall have full power to
manage the business and affairs of the Corporation; and all powers of the
Corporation, except those specifically reserved to the shareholders by law, the
Certificate of Incorporation or these Bylaws, are hereby granted to and vested
in the Board of Directors.
SECTION 3.02. NUMBER, QUALIFICATIONS AND TERM OF OFFICE. The Board of
Directors shall consist of such number of directors as may be determined from
time to time by resolution of the Board of Directors; provided that the Board
shall consist of not less than one (1) nor more than Seven (7) persons. No
director need be an officer or shareholder of the Corporation but each director
shall be a natural person 21 years of age or older. Each Director shall serve
until the next annual meeting of the shareholders or until his successor shall
have been duly elected and qualified except in the event of his death,
resignation or removal.
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SECTION 3.03. VACANCIES. Any director may be removed, either for or
without cause, at any meeting of shareholders by the affirmative vote of a
majority in number of shares of the shareholders present in person or by proxy
at such meeting and entitled to vote for the election of such director,
provided notice of the intention to act upon such matter shall have been given
in the notice calling such meeting. Vacancies and newly created directorships
resulting from any increase in the authorized number of Directors may be filled
by a majority of the Directors then in office, though less than a quorum, or by
a sole remaining Director, and any Director so chosen shall hold office until
the next annual election or until his successor is duly elected and qualified.
If there are no Directors in office, then an election of Directors may be held
in the manner provided by law. If, at the time of filing any vacancy or any
newly created directorship, the Directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior to any
such increase), a court of competent jurisdiction may, upon application of
shareholders holding of record at least 10 percent of the total number of the
shares at the time outstanding having the right to vote for such Directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships or to replace the Directors chosen by the Directors then
in office.
SECTION 3.04. RESIGNATIONS. Any Director of the Corporation may resign
at any time by giving written notice to the Board of Directors, Chairman of the
Board, President or the Secretary of the Corporation. Such resignation shall
take effect upon receipt by the Corporation of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such registration shall not be necessary to make it effective.
SECTION 3.05. ORGANIZATION. At every meeting of the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, the Director chosen by a
majority of the Directors present, shall preside, and the Secretary, or, in his
absence, the person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
SECTION 3.06. PLACE OF MEETING. The Board of Directors may hold its
meetings, both regular and special, at such place or places within or without
the state of incorporation as the Board of Directors may from time to time
select, as designated in the notice calling the meeting.
SECTION 3.07. ORGANIZATIONAL MEETING. The first meeting of each newly
elected Board of Directors shall be held without notice immediately following
the annual meeting of shareholders, unless the shareholders shall determine
otherwise.
SECTION 3.08. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall be
designated from time to time by a duly adopted action of the Board of Directors.
SECTION 3.09. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall
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be held whenever called by the Chairman of the Board or by two or more of the
Directors. Notice of each special meeting shall be given to each director by
telephone, telegram, telecopy, in writing or in person at least 24 hours (in the
case of notice by telephone, in person or actual notice however received) or 48
hours (in the case of notice by telegram, or telecopy or similar wire
communication) or five (5) days (in the case of notice by mail or otherwise)
before the time at which the meeting is to be held. Each such notice shall
state the date, time and place of the meeting to be so held.
SECTION 3.10. QUORUM AND ADJOURNED MEETINGS. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for the
transaction of business; and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting
of the Board of Directors, 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.
SECTION 3.11. UNANIMOUS CONSENT OF DIRECTORS IN LIEU OF MEETING.
Unless otherwise restricted by law, the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any Committee thereof may be taken without a meeting,
without prior notice and without a vote if all members of the Board or the
Committee, as the case may be, consent thereto in writing either before or
after the taking of action with respect thereto. The written consent shall be
filed with the minutes of proceedings of the Board or the Committees.
SECTION 3.12. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors
may, by resolution adopted by a majority of the whole Board, designate an
Executive Committee and one or more other committees, each committee to consist
of one or more Directors. Any such Committee to the extent provided in the
resolution establishing such Committee and not otherwise restricted or limited
by applicable law or the Certificate of Incorporation or the Bylaws, shall have
and may exercise all the power and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including the power
or authority to declare a dividend, to authorize the issuance of stock, to adopt
a certificate of ownership and merger and to authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
Committee shall have the power or authority in reference to (1) amending the
Certificate of Incorporation (except that a Committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of the stock adopted by the Board of Directors, as permitted by applicable law,
fix 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), (2) adopting an agreement of merger or consolidation,
(3) recommending to the shareholders the sale, lease or exchange, of all or
substantially all of the Corporation's
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property and assets, (4) recommending to the shareholders the dissolution of
the Corporation or a revocation of a dissolution, or (5) amending the Bylaws of
the Corporation. Such Committee or Committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors. Each Committee shall keep regular minutes of its meetings and file
the same with the minutes of the Board of Directors.
SECTION 3.13. COMPENSATION OF DIRECTORS. Unless otherwise restricted
by law, the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of Directors. The
Directors shall be reimbursed their actual reasonable expenses, if any, of
attendance at any meeting of the Board of Directors and any Committee thereof
and may be paid a fixed sum for attendance at each such meeting or a fixed
salary as determined by the Board of Directors. No such payment shall preclude
any Director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
NOTICE OF MEETINGS
SECTION 4.01. NOTICE. Whenever notice is required to be given to any
Director or shareholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such Director or
shareholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Notice to
shareholders may also be given in accordance with Section 2.04 of Article II
hereof, and notice to Directors may also be given in accordance with Section
3.09 of Article III hereof.
SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is required to be
given, a waiver thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Except in the case of a special
meeting of shareholders and ad otherwise required by law, neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
shareholders, Directors, or Committee of Directors need be specified in any
written waiver of notice of such meeting.
SECTION 4.03. CONFERENCE TELEPHONE MEETINGS. One or more
shareholders, Directors or members of a Committee of Directors may participate
in a meeting of the shareholders, the Board, or of a Committee of the Board, by
means of conference telephone or similar communications equipment provided that
all persons participating in the meeting can hear each other and participate in
discussions thereof. Participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
ARTICLE V
OFFICERS
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SECTION 5.01 NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a Chairman of
the Board, President, one or more Vice Presidents, a Secretary, a Treasurer, and
such other officers as may be elected in accordance with the provisions of
Section 5.03 of this Article. One person may hold more than one office.
Officers may be, but need not be, Directors or shareholders of the Corporation.
The Board of Directors may from time to time elect such other officers as it
deems necessary or appropriate, who shall exercise such powers and perform such
duties as are provided in these Bylaws and as the Board of Directors may from
time to time determine.
SECTION 5.02 ELECTION, TERM OF OFFICE AND RESIGNATION. The officers of
the Corporation shall be elected annually by the Board of Directors, and each
such officer shall hold his office until his successor shall have been elected
and qualified, or until his earlier death, resignation, or removal. Any officer
may resign at any time upon written notice to the Corporation. Such resignation
shall take effect upon receipt by the Corporation of such notice.
SECTION 5.03 REMOVAL OF OFFICERS. Any officer or agent elected or
appointed by the Board of Directors may be removed at any time, with or without
cause, by the affirmative vote of a majority of the whole Board of Directors. If
any office becomes vacant for any reason, the vacancy may be filled by the Board
of Directors.
SECTION 5.04 CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the Corporation. He shall
preside at all meetings of the shareholders and the Board of Directors and shall
assist the Board of Directors in the formulation of policies to be pursued by
the executive management of the Corporation. It shall be his responsibility to
see that the policies established by the Board of Directors are carried into
effect. He may sign and deliver on behalf of the Corporation any deeds,
mortgages, bonds, contracts, powers of attorney, or other instruments which the
Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation;
and he shall perform all duties incident to the office of Chief Executive
Officer of the Corporation and such other duties as may be prescribed by the
Board of Directors from time to time.
SECTION 5.05 PRESIDENT. The President shall be the Chief Operating
Officer of the Corporation, shall report to the Chairman of the Board, and shall
have general supervisory responsibility over all operations of the Corporation,
subject to the control of the Board of Directors. In the absence or incapacity
of the Chairman of the Board, the President shall perform all the duties of the
Chairman of the Board. He shall execute and deliver, in the name of the
Corporation, deeds, mortgages, bonds, contracts or other instruments, authorized
by the Board of Directors, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the
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Corporation; and, in general, subject to supervision by the Chairman of the
Board, the President shall perform all duties incident to the office of Chief
Operating Officer of the Corporation, and such other duties as from time to
time may be assigned to him by the Chairman of the Board or the Board of
Directors.
SECTION 5.06 VICE PRESIDENTS. The Vice Presidents, in the order of the
designation by the Board of Directors, shall perform the duties of the President
in his absence and such other duties as may from time to time be assigned to
them by the Board of Directors, the Chairman of the Board or by the President.
SECTION 5.07 SECRETARY. The Secretary shall attend all meetings of the
shareholders, the Board of Directors and Committees thereof, shall record the
minutes of the proceedings thereat and shall keep a current and complete record
thereof. The Secretary shall publish, keep and maintain records and reports of
the Corporation as required by law; shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on behalf
of the Corporation under its seal; and, in general, shall perform all
duties incident to the office of Secretary and such other duties as may from
time to time be assigned to him by the Board of Directors, the Chairman of the
Board or the President. Each Assistant Secretary shall have such powers and
perform such duties as the Board of Directors, the Chairman of the Board, or the
President may from time to time prescribe.
SECTION 5.08 TREASURER. The Treasurer shall be the Chief Financial
Officer of the Corporation; shall have responsibility for the proper care and
custody of all corporate funds and securities; shall keep full, accurate and
complete records, receipts and disbursements of the Corporation; and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements; shall
render a report to the Board of Directors, whenever requested, of the financial
condition of the Corporation; and shall perform such other duties as the Board
of Directors may prescribe. In the absence of a Corporate Controller, the
Treasurer shall be responsible for the performance of all the duties of the
Controller. Each Assistant Treasurer shall have such powers and perform such
duties as the Board of Directors, the Chairman of the Board or the President may
from time to time delegate.
SECTION 5.09 CONTROLLER. The Controller, if one is elected, shall be
the Chief Accounting Officer of the Corporation and shall cause to be kept full
and accurate books and accounts of all assets, liabilities and transactions of
the Corporation. The Controller shall establish and administer an adequate plan
for the control of operations, including systems and procedures required to
properly maintain internal controls on all financial transactions of the
Corporation. The Controller shall cause to be prepared statements of the
financial condition of the Corporation and proper profit and loss statements
covering the operations of the Corporation and such other additional financial
statements, if any, as the Chairman of the Board, the President, the Treasurer
or the Board of Directors from time to time shall require.
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The Controller shall work under the direct supervision of the Treasurer and
also shall perform such other duties as may be assigned to him by the Board of
Directors, the Chairman of the Board or the President.
SECTION 5.10 ASSISTANT OFFICERS. The Board of Directors may appoint one
or more assistant officers. Each assistant officer shall, at the request of or
in the absence or disability of the officer to whom he is an assistant, perform
the duties of such officer and shall have such other authority and perform such
other duties as the Board of Directors may prescribe.
SECTION 5.11 BONDS. If required by the Board of Directors, any officer
shall give the Corporation a bond in such form, in such sum, and with such
surety or sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in their possession or under their control belonging to the Corporation.
SECTION 5.12 SALARIES. The salaries of the officers of the Corporation
shall be fixed from time to time by the Board of Directors.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 6.01 ISSUANCE. Each shareholder shall be entitled to a
certificate or certificates representing shares of stock of the Corporation
owned of record by him upon his request therefor. The stock certificates of the
Corporation shall be numbered and registered in the stock ledger and transfer of
books of the Corporation as issued. Certificates shall be signed by the
Chairman, President or a Vice President and by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer, and shall bear the corporate
seal. Any or all of the signatures and the corporate seal upon such certificate
may be a facsimile, engraved or printed. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been place upon, any
share certificate shall have ceased to be such officer, transfer agent or
registrar, the certificate shall be valid and of the same force and effect as if
he continued to be such officer, transfer agent or registrar.
SECTION 6.02 TRANSFER. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. No transfer shall be made which would be
inconsistent with law.
SECTION 6.03 STOCK CERTIFICATES. Stock certificates of the Corporation
shall be
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in such form as provided by statute and approved by the Board of Directors. The
stock transfer books and the blank stock certificate books shall be kept by the
Secretary or by any officer or agency designated by the Board of Directors for
that purpose.
SECTION 6.04. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. The
Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed upon the receipt by the
Corporation of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing issuance of a
replacement certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to 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.
SECTION 6.05. RECORD HOLDER OF SHARES. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the record and beneficial owner of shares to receive dividends, to exercise
voting rights and for all purposes; and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, even if the Corporation shall have notice thereof.
SECTION 6.06. DETERMINATION OF RECORD DATE. In order that the
Corporation may determine the shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting or any other action.
If no record date is fixed:
(1) The record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding
the day on which the meeting is held.
(2) The record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the day
on which the first written consent is expressed.
(3) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
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A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders 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.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
SECTION 7.01. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN THIRD
PARTY PROCEEDINGS. To the maximum extent not prohibited by law, the Corporation
shall indemnify any person who was or is an "authorized representative" of the
Corporation (which shall mean for purposes of this Article a Director or
officer of the Corporation, or a person serving at the request of the
Corporation as a director, officer, partner or trustee of another corporation,
partnership, joint venture, trust or other business enterprise) and who was or
is a "party" (which shall include for purposes of this Article the giving of
testimony or similar involvement) or is threatened to be made a party to any
"third party proceeding" (which shall mean for purposes of this Article any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitration, administrative or investigative other than an action by
or in the right of the Corporation) by reason of the fact that such person was
or is an authorized representative of the Corporation, against expenses (which
shall include for purposes of this Article attorneys' fees and expenses),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal third party proceeding (which
could or does lead to a criminal third party proceeding) had no reasonable
cause to believe such conduct was unlawful. The termination of any third party
proceeding by judgment, order, settlement, indictment, conviction or upon a
plea of nolo contendere or its equivalent shall not of itself create a
presumption that the authorized representative did not act in good faith and in
a manner which such person reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
SECTION 7.02. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN
CORPORATE PROCEEDINGS. The corporation shall indemnify any person who was or
is an authorized
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representative of the Corporation and who was or is a party or is threatened to
be made a party to any "corporate proceeding" (which shall mean for purposes of
this Article any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor or investigative
proceeding by the Corporation) by reason of the fact that such person was or is
an authorized representative of the Corporation, against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such corporate action if such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation, unless and only to the extent that a court of
competent jurisdiction shall determine that, despite the adjudication of
liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to be indemnified to the
extent such court shall order.
SECTION 7.03. MANDATORY INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES.
To the extent that an authorized representative of the Corporation has been
successful on the merits or otherwise in defense of any third party proceeding
or corporate proceeding or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses actually and reasonably
incurred by such person in connection therewith.
SECTION 7.04 INDEMNIFICATION. To the full extent not prohibited by
the law as in effect from time to time, the Corporation shall indemnify any
person (and the heirs, executors and representatives of such person) who is or
was a director, officer, employee or agent of the Corporation, or who, at the
request of this Corporation, is or was a director, officer, employee, agent,
partner, or trustee, as the case may be, of any other corporation, partnership,
proprietorship, trust, association or other entity in which this Corporation
owns an interest, against any and all liabilities and reasonable expenses
incurred by such person in connection with or resulting from any claim, action,
suit or proceeding, whether brought by or in the right of the Corporation or
otherwise and whether civil, criminal, administrative or investigative in
nature, and in connection with an appeal relating thereto, in which such person
is a party or is threatened to be made a party by reason of serving or having
served in any such capacity.
SECTION 7.05 NO DIRECTOR LIABILITY IN CERTAIN CASES. To the maximum
extent permitted by law as in effect from time to time, no director of the
Corporation shall be liable to the Corporation or its shareholders for monetary
damages for breach of any fiduciary duty as a director, provided that this
provision shall not eliminate or limit the liability of a director for: (i)
any breach of the director's duty of loyalty to the Corporation or its
shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; unlawful payment of
dividends or stock redemptions; or (iv) any transaction from which the director
derived an improper personal benefit.
SECTION 7.06 CERTAIN COMPROMISES. Whenever a compromise or arrangement
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is proposed between this Corporation and its creditors or any class of them
and/or between this Corporation and its shareholders or any class of them, any
court of equitable jurisdiction within the State of Oklahoma, on the
application in a summary way of this Corporation or of any creditor or
shareholder thereof, or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 1106 of Title 18
of the Oklahoma Statutes as in effect from time to time or on the application
of trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 1100 of Title 18 of the Oklahoma
Statutes as in effect from time to time, may order a meeting of the creditors
or class of creditors, and/or of the shareholders or class of shareholders of
this Corporation, as the case may be, to be summoned in such manner as the
court directs. If a majority in number representing three-fourths (3/4ths) in
value of the creditors or class of creditors, and/or of the shareholders or
class of shareholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corporation as a
consequence of such compromise or arrangement, the compromise or arrangement
and the reorganization, if sanctioned by the court to which the application has
been made, shall be binding on all the creditors or class of creditors, and/or
on all the shareholders or class of shareholders, of this Corporation, as the
case may be, and also on this Corporation.
SECTION 7.07. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 7.01, 7.02 or 7.03 of this Article (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the authorized
representative is proper in the circumstances because such person has either
met the applicable standards of conduct set forth in Section 7.01 or 7.02 or
has been successful on the merits or otherwise as set forth in Section 7.03 and
that the amount requested has been actually and reasonably incurred. Such
determination shall be made:
(1) By the Board of Directors by a majority of a quorum consisting of
Directors who were not parties to such third party or corporate
proceeding; or
(2) If such a quorum is not obtainable, or, even if obtainable, a
majority vote of such a quorum so directs, by independent legal
counsel in a written opinion; or
(3) By the shareholders.
SECTION 7.08. ADVANCING EXPENSES. Expenses actually and reasonably
incurred in defending a third party or corporate proceeding shall be paid on
behalf of an authorized representative by the Corporation in advance of the
final disposition of such third party or corporate proceeding as authorized in
the manner provided in Section 7.04 of this Article upon receipt of an
undertaking by or on behalf of the authorized representative to repay such
amount unless it shall ultimately be determined that such person is entitled to
be indemnified by the Corporation as authorized in this Article. The financial
ability of such authorized representative to make such repayment shall not be a
prerequisite to the making of an advance.
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SECTION 7.09. EMPLOYEE BENEFIT PLANS. For purposes of this Article,
the Corporation shall be deemed to have requested an authorized representative
to serve an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise involves
services by, such person to the plan or participants or beneficiaries of the
plan; excise taxes assessed on an authorized representative with respect to an
employee benefit plan pursuant to applicable law shall be deemed "fines"; and
action taken or omitted by such person with respect to an employee benefit plan
in the performance of duties for a purpose reasonably believed to be in the
interest of the participants and beneficiaries of the plan shall be deemed to
be for a purpose which is not opposed to the best interests of the Corporation.
SECTION 7.10. SCOPE. The indemnification of and advancement of
expenses to authorized representatives, as authorized by this Article, shall
(1) not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of shareholders or disinterested Directors or otherwise, both
as to action in an official capacity and as to action in another capacity, (2)
continue as to a person who has ceased to be an authorized representative, and
(3) inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 7.11. RELIANCE. Each person who shall act as an authorized
representative of the Corporation shall be deemed to be doing so in reliance
upon rights of indemnification provided by this Article.
SECTION 7.12. INSURANCE. The Corporation may but shall not be
obligated to purchase and maintain insurance at its expense on behalf of any
person who is or was an authorized representative against any liability
asserted against him in such capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting only out of funds or property lawfully available therefor, pursuant to
law. Dividends may be paid in cash, in property, or in shares of the capital
stock or held by the Corporation subject to the provisions of the Certificate
of Incorporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum of sums as the
Directors from time to time, in its absolute discretion, thinks 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
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such other purpose as the Directors shall determine to be in the interests of
the Corporation, and the Board of Directors may modify or abolish such reserve
in the manner and at the time the Board of Directors or Committee thereof so
determines.
SECTION 8.02. ANNUAL STATEMENTS. The Board of Directors, through the
officers of the Corporation, shall present at each annual meeting, and at any
special meeting of the shareholders when called for by vote of the shareholders,
a full and clear statement of the business and condition of the Corporation.
SECTION 8.03. CONTRACTS. Except as otherwise provided in these Bylaws,
the Board of Directors may authorize any officer or officers or any agent or
agents to enter into any contract or to execute and deliver any instrument on
behalf of the Corporation and such authority may be general or confined to
specific instances.
SECTION 8.04. CHECKS. All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the Board of
Directors may from time to time designate.
SECTION 8.05. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal", and the state of incorporation of the Corporation. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 8.06. DEPOSITS. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies, or their depositories as the Board of Directors may approve or
designate; and all such funds may be withdrawn only upon checks or withdrawal
requests signed by such one or more officers or employees as the Board of
Directors shall from time to time determine.
SECTION 8.07. AMENDMENT OF BYLAWS. These Bylaws may be altered, amended
or repealed or new bylaws may be adopted by the shareholders or by the Board of
Directors at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting.
SECTION 8.08. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the first day of January and end on the 31st day of December, unless
otherwise provided by resolution of the Board of Directors.
SECTION 8.09. INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its Directors or officers, or between the
Corporation and any other company, partnership, association or other
organization in which one or more of its
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Directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
Director or officer is present at or participates in the meeting of the Board
of Directors or Committee thereof which authorizes the contract or transaction,
or solely because his or their vote is counted for such purpose; if: (1) the
material facts as to his relationship or interest are disclosed to the Board or
the Committee, and the Board or Committee in good faith authorizes the contract
or transaction by the affirmative vote of a majority of the disinterested
Directors, even though the disinterested Directors be less than a quorum; or
(2) the material facts as to his relationship or interest are disclosed to the
shareholders or Directors entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the shareholders
or Board of Directors; or (3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, adopted or ratified by
the Board of Directors or a Committee thereof or by the shareholders.
Interested Directors may be counted in determining the presence of a quorum at
a meeting of the Board or of a Committee of the Board which authorizes the
contract or transaction.
SECTION 8.10. FORM OF RECORDS. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall convert any
records so kept upon the request of any person entitled to inspect the same.
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