ENERGY PARTNERS, LTD.
(a Delaware corporation)
BYLAWS
ARTICLE I
OFFICES
The Corporation shall maintain a registered office in the State of Delaware
as required by law. The Corporation may also have offices at other places,
within or without the State of Delaware, as the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
Section 2.1. Place of Meetings. Meetings of the stockholders shall be held
at such place, within or without the State of Delaware, as the Board of
Directors designates.
Section 2.2. Annual Meeting. The annual meeting of the stockholders shall
be held on such date and at such time as the Board of Directors designates. At
each annual meeting the stockholders shall elect the members of the Board of
Directors and transact such other business as is set forth in the written notice
of the meeting or may be properly brought before the meeting.
Section 2.3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by the General Corporation
Law of Delaware ("DGCL"), may be called by the President or Chairman of the
Board of Directors and shall be called by the President or the Secretary at the
request in writing of (a) a majority of the Board of Directors or (b) any
director designated, nominated or elected by the Evercore Entities (the
"Evercore Directors") pursuant to the Stockholder Agreement dated as of November
17, 1999, and amended and restated on March 17, 2003, by and among Energy
Partners, Ltd., Evercore Capital Partners L.P., Evercore Capital Partners (NQ)
L.P., Evercore Capital Offshore Partners L.P., Energy Income Fund, L.P. and
individual shareholders of the Corporation signatories thereto (the "Stockholder
Agreement"). Such a request shall state the purpose or purposes of the proposed
meeting. Business transacted at a special meeting shall be limited to the
purpose or purposes set forth in the written notice of the meeting.
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Section 2.4. Notice of Meetings; Adjournment. Written notice of each
meeting of the stockholders, stating the place, date and time of the meeting,
shall be given to each stockholder at least 10, but not more than 60, days
before the meeting. Only such business shall be conducted at a special meeting
of stockholders of which notice shall have been given in accordance herewith.
Any proper matter for stockholder action may be brought before an annual meeting
of stockholders, provided that notice of any such matter to be brought before
the meeting by any stockholder shall have been given to the Corporation as
provided by Section 2.10 of these Bylaws. When a meeting is adjourned to another
place, date or time and the place, date and time of the adjourned meeting are
announced at the meeting at which the adjournment is taken, written notice need
not be given of the adjourned meeting unless the date thereof is more than 30
days after the date for which the meeting was originally noticed. At any
adjourned meeting, any business may be transacted that might have been
transacted at the meeting as originally noticed.
Section 2.5. Quorum. The holders, present in person or represented by
proxy, of a majority of the issued and outstanding shares of capital stock
entitled to be voted at a meeting shall constitute a quorum for the transaction
of business at the meting. If less than a quorum is present, the holders of a
majority of such shares whose holders are so present or represented may from
time to time adjourn the meeting to another place, date or hour until a quorum
is present, whereupon the meeting may be held, as adjourned, without further
notice except as required by law or by Section 2.04.
Section 2.6. Voting. When a quorum is present at a meeting of the
stockholders, the vote of the holders of a majority of the shares of capital
stock entitled to be voted whose holders are present in person or represented by
proxy shall decide any question brought before the meeting, unless the question
is one upon which, by express provision of law, the national securities exchange
on which the Company's capital stock is traded or the Restated Certificate of
Incorporation, a different vote is required; provided that directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy and entitled to vote at the meeting . Each stockholder
shall at a meeting of the stockholders be entitled to one vote in person or by
proxy for each share of capital stock entitled to be voted held by such
stockholder. No shares redeemed and held by the Corporation shall have voting
rights. No proxy shall be valid after three years from its date unless the proxy
specifically provides for a longer period. At a meeting of the stockholders, all
questions relating to the qualifications of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by the presiding officer
of the meeting.
Section 2.7. Presiding Officer of Meetings. The Chairman of the Board of
Directors, if any, or in the absence of the Chairman of the Board, the
President, shall preside at all meetings of the stockholders. In the absence of
the Chairman of the Board and the President, the presiding officer shall be
elected by vote of the holders of a majority of the shares of
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capital stock entitled to be voted whose holders are present in person or
represented by proxy at the meeting.
Section 2.8. Secretary of Meetings. The Secretary of the Corporation shall
act as secretary of all meetings of the stockholders. In the absence of the
Secretary, the presiding officer of the meeting shall appoint any other person
to act as secretary of the meeting.
Section 2.9. Action in Lieu of Meeting. Any action required or permitted to
be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if consents in
writing, setting forth the action so taken, are signed by the holders of shares
of capital stock having not less than the greater of (i) the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which the holders of all shares entitled to be voted thereon were present and
voted or (ii) 85% of the total number of votes of the then outstanding shares of
capital stock of the Corporation entitled to vote, and delivered to the
Corporation in accordance with Section 228(a) of the DGCL. Prompt notice of the
taking of action without a meeting by less than unanimous consent shall be given
to the stockholders who have not consented in writing and who, if the action had
been taken at a meeting, would have been entitled to notice of the meeting if
the record date for the meeting had been the date that written consents signed
by stockholders holding a sufficient number of shares of capital stock of the
Corporation to take the action were delivered to the Corporation as provided in
this Section 2.09.
Section 2.10. Notice of Stockholder Nominations and Other Proposed
Stockholder Action.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election as directors and the proposal
of matters to be considered and voted on by the stockholders at an annual
meeting of stockholders may be made only (i) pursuant to Section 2.4 of
these Bylaws (or any supplement thereto), (ii) by or at the direction of
the Board of Directors or (iii) by any stockholder of the Corporation who
was a stockholder of record at the time of giving the notice required by
this Section 2.10 and who shall be entitled to vote at the meeting (or a
duly authorized proxy therefor) and who complies with the notice procedures
set forth in this Section 2.10.
(2) For nominations or other proposals to be properly brought before
an annual meeting of stockholders by a stockholder pursuant to paragraph
(a)(1) of this Section 2.10, (w) the stockholder must have given timely
notice thereof (including the information required hereby) in writing to
the Secretary of the Corporation, (x) any such proposal must otherwise be a
proper matter for stockholder action under the DGCL, (y) if the beneficial
owner on whose behalf any such proposal or nomination is
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made has provided the Corporation with a Solicitation Notice as that term
is defined in this Section 2.10(a)(2), such stockholder or beneficial owner
must, in the case of a proposal, have delivered a proxy statement and form
of proxy to holders of at least the percentage of the Corporation's voting
shares required under applicable law to carry any such proposal, or, in the
case of a nomination or nominations, have delivered a proxy statement and
form of proxy to holders of a percentage of the Corporation's voting shares
reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee or nominees proposed to be nominated by
such stockholder and must, in either case, have included in such materials
the Solicitation Notice and (z) if no Solicitation Notice relating thereto
has been timely provided pursuant to this Section 2.10, the stockholder or
beneficial owner proposing such business or nomination must not have
solicited a number of proxies sufficient to have required the delivery of
such a Solicitation Notice under this Section 2.10. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business
on the 60th calendar day nor earlier than the close of business on the 90th
calendar day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 calendar days before or more than 30 calendar days
after such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the close of business on the 90th calendar
day prior to such annual meeting and not later than the close of business
on the later of the 60th calendar day prior to such annual meeting or the
10th calendar day following the calendar day on which public announcement
of the date of such meeting is first made by the Corporation. In no event
shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period or extend any time period for the
giving of a stockholder's notice of a nomination or proposed action as
described above. Such stockholder's notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election or reelection
as a director, (i) the name, age, business address and residence address of
the person, (ii) the principal occupation and employment of the person,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and
(iv) all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14a-11 thereunder (or any successor provision of
law), including such person's written consent to being named as a nominee
and to serving as a director if elected; (b) as to any other business that
the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for
consideration and, in the event that such business includes a proposal to
amend the Bylaws of the Corporation, the language of the pro-
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posed amendment), the reasons for conducting such business at the meeting
and any material interest in such business of such stockholder and of any
of such stockholder's affiliates (as defined below) and of any person who
is the beneficial owner (as defined below), if any, of such stock and any
other information relating to the stockholder, the beneficial owner or
proposed business that would be required to be disclosed in solicitations
of proxies relating to the proposed items of business pursuant to
Regulation 14A under the Exchange Act and Rule 14a-11 thereunder (or any
successor provision of law); and (c) as to the stockholder giving the
notice and each beneficial owner, if any, of such stock, (i) the name and
address of such stockholder, as they appear on the Corporation's stock
ownership records, (ii) the name and address of each beneficial owner of
such stock, (iii) the class and number of shares of capital stock of the
Corporation which are owned of record or beneficially by each such person,
(iv) in the case of a proposal for a nomination for election or reelection
of a director, (1) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to
be made by such stockholder, (2) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to nominate
the person named in its notice, (3) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group
which intends to (x) deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the Corporation's outstanding capital
stock required to elect the nominee (an affirmative statement of such
intent, a "Solicitation Notice") and/or (y) otherwise solicit proxies from
stockholders in support of such nomination and (4) any other information
relating to such stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act, and the rules and regulations promulgated thereunder,
and (v) in the case of any other proposal of a stockholder, (1) a
description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) pursuant to which
the proposals are to be made by such stockholder, (2) a representation that
such stockholder intends to appear in person or by proxy at the annual
meeting to propose the items of business set forth in the notice, (3) a
representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends to (x) deliver a Solicitation
Notice and/or (y) otherwise solicit proxies from stockholders in support of
such proposal, and (4) any other information relating to such stockholder,
beneficial owner or proposed business that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies in support of such proposal
pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder. The Corporation may require the stockholder to
furnish such other information as it may reasonably require to determine
whether each
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proposed item of business is a proper matter for stockholder action or to
determine the eligibility of such proposed nominee to serve as a director
of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 2.10 to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation at
an annual meeting of stockholders is increased and there is no public
announcement by the Corporation specifying the increased size of the Board
of Directors at least 70 calendar days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by
this Section 2.10 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary of the Corporation at the principal executive
offices of the Corporation not later than the close of business on the 10th
calendar day following the day on which such public announcement is first
made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting under Section 2.4 of
these Bylaws. Nominations of persons for election to the Board of Directors at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting may be made only (i) by or at the direction
of the Board of Directors or (ii) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving the
notice required by this Section 2.10 and who shall be entitled to vote at the
meeting (or a duly authorized proxy therefor) and who complies with the
procedures set forth in this Section 2.10. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, for nominations to be properly brought
before the special meeting by a stockholder pursuant to this paragraph, the
stockholder must give notice thereof containing the information required in the
case of a nomination to be made by a stockholder at an annual meeting of
stockholders by paragraph (a)(2) of this Section 2.10 to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier
than the close of business on the 90th calendar day prior to such special
meeting and not later than the close of business on the later of the 60th
calendar day prior to such special meeting or the 10th calendar day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice of a nomination as described above.
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(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.10 shall be eligible to be elected
as directors (except as may be otherwise provided in the Restated
Certificate of Incorporation with respect to the right of holders of
preferred shares of the Corporation to nominate and elect a specified
number of directors in certain circumstances) and only such business shall
be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Section
2.10. Except as otherwise provided by law, the Restated Certificate of
Incorporation or these Bylaws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section 2.10 and, if
any proposed nomination or business is not in compliance with this Section
2.10, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this Section 2.10, "affiliate" in respect of a
person shall mean another person who controls, is controlled by or is under
common control with such person and the term "beneficially owns" (and
variations thereof) shall have the same meaning as when used in Section
13(d) of the Exchange Act and Regulation 13d-3 thereunder (or any successor
provision of law). For purposes of this Section 2.10, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.10, (i)
a stockholder shall also be required to comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Section 2.10 and nothing
contained herein shall constitute a waiver by the Corporation or any
stockholder of compliance therewith and (ii) nothing in this Section 2.10
shall be deemed to affect any rights (A) of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act (or any successor provision of law) or
(B) of the holders of any series of preferred stock to elect directors in
accordance with the provisions of any applicable certificate of designation
for preferred stock.
(4) The provisions of this Section 2.10 shall not apply to
transactions contemplated by the Stockholder Agreement.
(5) Notwithstanding any other provision of law, the Restated
Certificate of Incorporation or these Bylaws, and notwithstanding the fact
that a lesser percentage
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may be specified by law, the affirmative vote of the holders of at least
66.67% of the votes which all the stockholders would be entitled to cast at
any annual election of directors shall be required to amend or repeal, or
to adopt any provision inconsistent with, this Section 2.10.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Powers. The business of the Corporation shall be managed under
the direction of the Board of Directors, which shall exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by
the Restated Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
Section 3.2. Number; Election; Qualification; Term.
(a) The number of directors that shall constitute the Board of Directors
shall be fixed from time to time pursuant to a resolution passed by a majority
of the Board. The term of office of a director shall not be affected by any
decrease in the authorized number of directors.
(b) At the first annual meeting and at each subsequent annual meeting of
the stockholders, except as otherwise provided in these Bylaws or an agreement
among the stockholders, the stockholders shall elect directors to serve until
the next annual meeting or until their successors are elected and qualified.
(c) Unless by the terms of the action pursuant to which a director is
elected any special condition or conditions must be fulfilled in order for him
or her to be qualified, a person elected as a director shall be deemed to be
qualified (1) upon his or her receipt of notice of election and his or her
indication of acceptance thereof or (2) upon the expiration of ten days after
notice of election is given to him or her without his or her having given notice
of inability or unwillingness to serve.
(d) Subject to Section 3.13, each director shall hold office for a term
that expires at the annual meeting of the stockholders next following his or her
election, provided that if he or she is not re-elected and his or her successor
is not elected and qualified at the meeting and there remains a vacancy in the
Board of Directors, he or she shall continue to serve until his or her successor
is elected and qualified or until his or her earlier death, resignation or
removal. A director may serve for any number of terms, consecutive or otherwise.
Directors need not be stockholders of the Corporation.
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Section 3.3. Vacancies. Whenever between annual meetings of the
stockholders any vacancy exists in the Board of Directors by reason of death,
resignation, removal or increase in the authorized number of directors or
otherwise, it may be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum.
Section 3.4. Place of Meetings. Any meeting of the Board of Directors may
be held either within or without the State of Delaware.
Section 3.5. Annual Meeting. There shall be an annual meeting of the Board
of Directors for the election of officers and the transaction of such other
business as may be brought before the meeting. The annual meeting of the Board
shall be held immediately following the annual meeting of the stockholders or
any adjournment thereof, at the place where the annual meeting of the
stockholders was held or at such other time and place as a majority of the
directors determine. If a quorum is then present, no notice of the meeting shall
be necessary. If the annual meeting is not so held, it shall be called and held
in the manner provided herein for special meetings of the Board or conducted
pursuant to Section 3.11.
Section 3.6. Regular Meetings. Regular meetings of the Board of Directors,
other than the annual meeting, may be held without notice at such times and
places as the Board may have fixed by resolution.
Section 3.7. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, if any, or the President and shall
be called on the written request of a majority of directors then in office or
any of the Evercore Directors. Not less than one day's notice of a special
meeting shall be given by the Secretary to each director.
Section 3.8. Organization. The Chairman of the Board, if any, or in the
absence of the Chairman of the Board, the President, shall preside over meetings
of the Board of Directors. In the absence of the Chairman of the Board and the
President, a presiding officer shall be chosen by a majority of the directors
present. The Secretary of the Corporation shall act as secretary of the meeting.
In his or her absence the presiding officer shall appoint another person to act
as secretary of the meeting.
Section 3.9. Quorum. The presence of a majority of the authorized number of
directors shall be necessary to constitute a quorum for the transaction of
business at a meeting of the Board of Directors, except as otherwise provided in
the Restated Certificate of Incorporation or in these Bylaws. If less than a
quorum is present, the directors present may from time to time, without notice
other than announcement at the meeting, adjourn the meeting to another time or
place until a quorum is present, whereupon the meeting may be held, as
adjourned, without notice.
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Section 3.10. Vote. 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, by the national
securities exchange on which the Company's capital stock is listed, by the
Restated Certificate of Incorporation or by these Bylaws.
Section 3.11. Action in Lieu of a Meeting. 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 of the members of the Board or committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board or committee.
Section 3.12. Conference Call Meeting. Members of the Board of Directors or
any committee thereof may participate in a meeting of the Board 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 in a meeting shall constitute presence in
person at the meeting.
Section 3.13. Removal of Director. Subject to the terms of any agreement to
the contrary by and among the Corporation and its stockholders, any director
shall be subject to removal with or without cause at any time by the holders of
a majority of the shares of capital stock then entitled to be voted at an
election of directors. Any director designated, nominated or elected by any
stockholder or stockholders of the Corporation (the "Designating Stockholders")
pursuant to the terms of any agreement among the Corporation and any of its
stockholders shall be subject to removal with or without cause at any time by
the Designating Stockholders.
ARTICLE IV
COMMITTEES
Section 4.1. Committees of the Board. The Board of Directors may, by
resolution passed by a majority of the directors in office, establish one or
more committees, each committee to consist of one or more of the directors. The
Board 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. Any such committee, to the extent provided in the resolution of
the Board, shall have and may exercise all the power and authority of the Board
of Directors for direction and supervision of the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it. No such committee, however, shall
have power or authority in reference to amending the Restated Certificate of
Incorporation or the Bylaws, adopting an
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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, electing a director, electing or removing an
officer or any matter required by the DGCL to be submitted to stockholders for
approval; and unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 4.2. Procedures; Minutes of Meeting. Each committee shall determine
its rules with respect to notice, quorum, voting and the taking of action,
provided that such rules shall be consistent with law, the rules in these Bylaws
applicable to the Board of Directors and the resolution of the Board of
Directors establishing the committee. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
ARTICLE V
OFFICERS
Section 5.1. General. The Board of Directors shall elect the officers of
the Corporation annually at its first meeting following the annual meeting,
which shall include a President and Chief Executive Officer, one or more
Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, a
Secretary and a Treasurer, and such other officers, including a Chairman of the
Board and a Chief Financial Officer, as in the Board's opinion are desirable for
the conduct of the business of the Corporation. Any two or more offices may be
held by the same person, except the offices of President and Secretary may not
be held by the same person.
Section 5.2. Powers and Duties. Each of the officers of the Corporation
shall, unless otherwise ordered by the Board of Directors, have such powers and
duties as generally pertain to his or her respective office as well as such
powers and duties as from time to time may be conferred upon him or her by the
Board.
Section 5.3. Term of Office; Removal and Vacancy. Each officer shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal and shall be subject to removal with or without
cause at any time by action of the Board of Directors. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors.
Section 5.4. President and Chief Executive Officer. The President shall be
the Chief Executive Officer of the Corporation unless the Board of Directors
designates the
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Chairman of the Board as Chief Executive Officer. Subject to the control of the
Board of Directors, the Chief Executive Officer shall have general executive
charge, management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; may agree upon and execute all leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation; unless the
Board of Directors otherwise determines, he or she shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at all
meetings of the stockholders and (should he or she be a director) of the Board
of Directors; may sign all certificates for shares of capital stock of the
Corporation; and shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time be assigned by the Board
of Directors.
Section 5.5. Power to Vote Stock. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer of the Corporation shall have full power
and authority on behalf of the Corporation to attend and to vote at any meeting
of stockholders or partners of any corporation or any partnership in which the
Corporation may hold stock or partnership interests, as the case may be, may
exercise on behalf of the Corporation any and all of the rights and powers
incident to the ownership of such stock or partnership interests at any such
meeting, and shall have power and authority to execute and deliver proxies,
waivers and consents on behalf of the Corporation in connection with the
exercise by the Corporation of the rights and powers incident to the ownership
of such stock or partnership interests. The Board of Directors may from time to
time confer like powers upon any other person or persons.
Section 5.6. Chairman of the Board. If elected, the Chairman of the Board
shall preside at all meetings of the stockholders and of the Board of Directors;
and he or she shall have such other powers and as duties designated in these
Bylaws and as from time to time may be assigned by the Board of Directors.
Section 5.7. Vice Presidents. The Corporation shall have such Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents as the Board of
Directors shall from time to time determine. A Vice President may be charged
with the responsibility of managing a specific operational division of the
Corporation, and his title as Vice President shall refer to the applicable
operational division.
Section 5.8. Treasurer. The Treasurer shall have custody of all the funds
and securities of the Corporation which come into his or her hands. When
necessary or proper, he or she may endorse, on behalf of the Corporation, for
collection checks, notes and other obligations and shall deposit the same to the
credit of the Corporation in such bank or banks or depositories as shall be
designated in the manner prescribed by the Board of Directors, and he or she may
sign all receipts and vouchers for payments made to the Corporation, either
alone or jointly with such other officer as is designated by the Board of
Directors. Whenever re-
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quired by the Board of Directors, the Treasurer shall render a statement of his
or her cash count. The Treasurer shall enter or cause to be entered regularly in
the books of the Corporation to be kept by him or her for that purpose full and
accurate accounts of all moneys received and paid out on account of the
Corporation; shall perform all acts incident to the position of Treasurer
subject to the control of the Board of Directors; may sign with the President or
a Vice President all certificates for shares of the capital stock of the
Corporation; and shall, if required by the Board of Directors, give such bond
for the faithful discharge of his or her duties in such form as the Board of
Directors may require.
Section 5.9. Assistant Treasurers. Each Assistant Treasurer shall have the
powers and duties pertaining to his or her office, together with such other
powers and duties as may be assigned to him or her by the Board of Directors.
Section 5.10. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and the minutes of all meetings of the
stockholders in books provided for that purpose; shall attend to the giving and
serving of all notices; may in the name of the Corporation attest to all
contracts of the Corporation and affix the seal of the Corporation thereto; may
sign with the President or a Vice President all certificates for shares of the
capital stock of the Corporation; shall have charge of the certificate books,
transfer books and stock ledgers, and such other books and papers as the Board
of Directors may direct, all of which shall at all reasonable times be open to
inspection of any director upon application at the office of the Corporation
during business hours; and shall in general perform all duties incident to the
office of Secretary, subject to the control of the Board of Directors.
Section 5.11. Assistant Secretary. Each Assistant Secretary shall have the
usual powers and duties pertaining to his or her office, together with such
other powers and duties as may be assigned to him or her by the Board of
Directors or the Secretary.
ARTICLE VI
CAPITAL STOCK
Section 6.1. Certificates of Stock. Certificates for shares of capital
stock of the Corporation shall be in such form as the Board of Directors may
from time to time prescribe and shall be signed by the President or the
Executive Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer. Any or each of the signatures on a stock
certificate, including that of any transfer agent or registrar, may be a
facsimile. If any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate has ceased to be such
officer, transfer agent or registrar before the certificate is issued, the
certificate may be issued by the Corporation with the same
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effect as if the officer, transfer agent or registrar were the officer, transfer
agent or registrar at the date of issuance.
Section 6.2. Transfer of Stock. Shares of stock of the Corporation shall be
transferable on the books of the Corporation only by the holder of record
thereof, in person or by duly authorized attorney, upon surrender and
cancellation of a certificate or certificates for a like number of shares, with
an assignment or power of transfer endorsed thereon or delivered therewith, duly
executed, and with such proof of the authenticity of the signature and of
authority to transfer, and of payment of transfer taxes, as the Corporation or
its agents may require.
Section 6.3. Ownership of Stock. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the owner thereof in
fact 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 has express or other notice thereof, except as otherwise expressly provided
by law.
Section 6.4. Lost, Stolen or Destroyed Certificates. In case any
certificate for stock of the Corporation is lost, stolen or destroyed, the
Corporation may require such proof of the fact and such indemnity to be given to
it, to its transfer agent or to its registrar, if any, as deemed necessary or
advisable by it.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Corporate Seal. The seal of the Corporation shall be circular
in form and shall contain the name of the Corporation and the words "Corporate
Seal, Delaware" as set forth below:
Section 7.2. Fiscal Year. The Board of Directors shall have power to fix,
and from time to time to change, the fiscal year of the Corporation.
Section 7.3. Restated Certificate of Incorporation. All references in these
Bylaws to the Restated Certificate of Incorporation shall be deemed to refer to
the Restated Certificate of Incorporation of the Corporation, as amended and in
effect from time to time.
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ARTICLE VIII
INDEMNIFICATION; TRANSACTIONS WITH INTERESTED PERSONS
Section 8.1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to any employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
such a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the full extent authorized by the DGCL, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), or by other applicable law as then in effect,
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts to be paid in settlement)
actually and reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators, provided,
however, that except as provided in Section 8.2 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee seeking indemnification in connection with a proceeding (or
part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the DGCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee while a director or officer, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined that such indemnitee is not entitled to be indemnified under this
Section 8.1, or otherwise.
Section 8.2. Right of Indemnitee to Bring Suit. If a claim under this
Article is not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which
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case the applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, to the extent successful in whole or in part, the indemnitee
shall be entitled to be paid also the expense of prosecuting such suit. The
indemnitee shall be presumed to be entitled to indemnification under this
Article under submission of a written claim (and, in an action brought to
enforce a claim for an advancement of expenses, where the required undertaking,
if any is required, has been tendered to the Corporation), and thereafter the
Corporation shall have the burden of proof to overcome the presumption that the
indemnitee is not so entitled. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification
of the indemnitee is proper in the circumstances nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel or
its stockholders) that the indemnitee is not entitled to indemnification shall
be a defense to the suit or create a presumption that the indemnitee is not so
entitled.
Section 8.3. Nonexclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provision of the Restated Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 8.4. Insurance, Contracts and Funding. The Corporation may maintain
insurance, at its expense, to protect itself and any Director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL. The Corporation may enter into
contracts with any indemnitee in furtherance of the provisions of this Article
and may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article.
Section 8.5. Definition of Director and Officer. Any person who is or was
serving as a director or officer of a wholly owned subsidiary of the Corporation
shall be deemed, for purposes of this Article only, to be a director or officer
of the Corporation entitled to indemnification under this Article.
Section 8.6. Indemnification of Employees and Agent of the Corporation. The
Corporation may, by action of the Board of Directors from time to time, grant
rights to indemnification and advancement of expenses to employees and agents of
the Corporation with the same scope and effect as the provisions of this Article
with respect to the indemnification and advancement of directors and officers of
the Corporation.
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Section 8.7. Transactions with Interested Persons. No contract or
transaction between the Corporation and any of its directors or officers, or
between the Corporation and any other corporation, partnership, association or
other organization in which any of its directors or officers is a director or
officer or has a financial interest, shall be void or voidable solely for that
reason, or solely because the director or officer is present at or participates
in the meeting of the Board of Directors or committee thereof at which the
contract or transactions is authorized or solely because his or her vote is
counted for such purpose, if:
(a) the material facts as to his or her relationship or interest and as to
the contract or transaction are disclosed or are known 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 are less than a quorum;
(b) the material facts as to his or her relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by the vote of the stockholders; or
(c) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board, a committee thereof or
the stockholders.
ARTICLE IX
NOTICES
Section 9.1. Notice. Whenever notice is required or permitted by these
Bylaws to be given to any person, it may be either (a) oral and communicated in
person, by telephone, or by radio, television or other form of voice
communication, effective upon receipt by the person or (b) in writing
communicated by being delivered by hand, by mail or by telegraph, teletype,
facsimile or other form of record communication, effective upon receipt by the
person or, if earlier, upon delivery at his or her address as registered in the
records of the Corporation for purposes of notice-giving ("notice address");
provided that (1) notice of a meeting of the stockholders shall be in writing
and (2) a written notice, if mailed first-class mail, postpaid and correctly
addressed to a person at his or her notice address, shall be effective two days
after its deposit by the sender in the United States mail.
Section 9.2. Waiver. Whenever any notice is required to be given under the
provisions of law or of the Restated Certificate of Incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
the notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance at a meeting for
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which notice is required shall be deemed waiver of such notice unless such
attendance is for the purpose of objecting, at the beginning of the meeting, to
the transaction of business on the ground that the meeting is not lawfully
called or convened.
ARTICLE X
AMENDMENT
These Bylaws may be amended or repealed, in any manner provided by the
DGCL, the Restated Certificate of Incorporation or these Bylaws.
ARTICLE XI
CONFLICT WITH STOCKHOLDER AGREEMENT
In case of any conflict between the provisions of these Bylaws and the
provisions of the Stockholder Agreement, the provisions of the Stockholder
Agreement shall govern.