Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS OF
BLUE DOLPHIN ENERGY COMPANY
(the "Corporation")
ARTICLE I
Offices
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Section 1.1. Offices.
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The registered office of the Corporation shall be at 1209 Orange Street,
Corporation Trust Center, Wilmington, New Castle County, Delaware 19801. The
Corporation may have such other offices within or without the State of Delaware
as the board of directors may from time to time establish.
ARTICLE II
Capital Stock
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Section 2.1. Certificates Representing Shares.
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(a) Shares of the classes of capital stock of the Corporation may be
certificated or uncertificated, as provided under Delaware law, and shall be
entered in the books of the Corporation and registered as they are issued. Any
certificates representing shares of stock shall be in such form or forms as the
board of directors may approve; provided that, such form or forms shall comply
with all applicable requirements of law or of the certificate of incorporation.
Such certificates shall be signed by the president or a vice president, and by
the secretary or an assistant secretary, of the Corporation and may be sealed
with the seal of the Corporation or imprinted or otherwise marked with a
facsimile of such seal. In the case of any certificate countersigned by any
transfer agent or registrar, provided such countersigner is not the Corporation
itself or an employee thereof, the signature of any or all of the foregoing
officers of the Corporation may be represented by a printed facsimile thereof.
If any officer whose signature, or a facsimile thereof, shall have been set upon
any certificate shall cease, prior to the issuance of such certificate, to
occupy the position in right of which his signature, or facsimile thereof, was
so set upon such certificate, the Corporation may nevertheless adopt and issue
such certificate with the same effect as if such officer occupied such positions
as of such date of issuance; and, issuance and delivery of such certificate by
the Corporation shall constitute adoption thereof by the Corporation. The
certificates shall be consecutively numbered, and as they are issued, a record
of such issuance shall be entered in the books of the Corporation.
(b) Within a reasonable time after the issuance of uncertificated stock,
the Corporation shall send to the registered owner thereof a written notice that
shall set forth the name of the Corporation, that the Corporation is organized
under the laws of the state of Delaware, the name of the stockholder, and the
number of shares (and, if the stock of the Corporation shall be divided into
classes or series, the class and series of such shares) represented, and any
restrictions on the transfer or registration of such shares of stock imposed by
the Corporation's Certificate of Corporation, these By-Laws, any agreement among
stockholders or any agreement between stockholders and the Corporation.
Section 2.2. Stock Certificate Book and Stockholders of Record.
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The secretary of the Corporation shall maintain, among other records, a
stock certificate book, which shall set forth the names and addresses of the
holders of all issued shares of the Corporation, the number of shares held by
each, the date of issue of such shares, whether or not such shares originate
from original issue or from transfer and, in the case of certificated shares,
the number of the certificates representing such shares. The names and addresses
of stockholders as they appear on the stock certificate book shall be the
official list of stockholders of record of the Corporation for all purposes. The
Corporation shall be entitled to treat the holder of record of any shares as the
owner thereof for all purposes, and shall not be bound to recognize any
equitable or other claim to, or interest in, such shares or any rights deriving
from such shares on the part of any other person, including, but without
limitation, a purchaser, assignee, or transferee, unless and until such other
person becomes the holder of record of such shares, whether or not the
Corporation shall have either actual or constructive notice of the interest of
such other person.
Section 2.3. Stockholder's Change of Name or Address.
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Each stockholder shall promptly notify the secretary of the Corporation, at
its principal business office, by written notice sent by certified mail, return
receipt requested, of any change in name or address of the stockholder from that
as it appears upon the official list of stockholders of record of the
Corporation. The secretary of the Corporation shall then enter such changes into
all affected Corporation records, including, but not limited to, the official
list of stockholders of record.
Section 2.4. Transfer of Stock.
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Shares of stock of the Corporation shall be transferable upon its books by
the holders thereof, in person or by their duly authorized attorneys or legal
representatives, and, in the case of shares represented by a certificate, upon
surrender to the Corporation by delivery thereof to the person in charge of the
stock and transfer books and ledgers. Such certificates shall be cancelled and
new certificates shall thereupon be issued. A record shall be made of each
transfer. Upon receipt of proper transfer restrictions from the holder of
uncertificated shares, the Corporation shall cancel such uncertificated shares
and issue new equivalent uncertificated shares, or, upon such holder's request,
certificated shares, to the person entitled thereto, and record the transaction
upon its books. The board of directors may make such rules and regulations
concerning the issue, transfer, registration and replacement of certificates, as
they deem desirable or necessary.
Section 2.5. Transfer Agent and Registrar.
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The board of directors may appoint one or more transfer agents or registers
of the shares, or both, and may require all share certificates to bear the
signature of a transfer agent or registrar, or both.
Section 2.6. Lost, Stolen or Destroyed Certificates.
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The Corporation may issue a new certificate for shares of stock or
uncertificated shares may be issued in the place of any certificate theretofore
issued and alleged to have been lost, stolen or destroyed; but the board of
directors may require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to furnish an affidavit as to such loss, theft or
destruction and to give a bond in such form and substance, and with such surety
or sureties, with fixed or open penalty, as the board of directors may direct,
in order to indemnify the Corporation and its transfer agents and registers, if
any, against any claim that may be made on account of the alleged loss, theft or
destruction of such certificates.
ARTICLE III
The Stockholders
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Section 3.1. Annual Meeting.
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The annual meeting of the stockholders, for the election of directors and
for the transaction of such other business as may properly come before the
meeting, shall be held at such date and time as the board of directors may
designate and if not otherwise designated then the fourth Monday in April of
each year, if not a legal holiday, and if a legal holiday, then on the next
secular day following at 10:00 a.m. Failure to hold any annual meeting or
meetings shall not work a forfeiture or dissolution of the Corporation.
Section 3.2. Special Meetings.
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Except as otherwise provided by law or by the Certificate of Incorporation,
special meetings of the stockholders may be called by the chairman of the board
of directors, the president, or a majority of the directors and shall be called
by the Secretary of the Corporation upon the written request therefor, stating
the purpose(s) of the meeting, delivered to the Corporation and signed by the
holders of not less than twenty-five percent (25%) of all the shares outstanding
and entitled to vote at such meeting. Special Meetings shall be held at the
principal office of the Corporation or at such other place, and at such time, as
may be stated in the notice calling such meeting. Business transacted at any
special meeting of stockholders shall be limited to the purpose stated in the
notice of such meeting given in accordance with the terms of Section 3.3.
Section 3.3. Notice of Meetings - Waiver.
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Written notice of each meeting of stockholders, stating the place, day and
hour of any meeting and, in case of a special stockholders' meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten nor more than sixty days before the date of such meeting, either personally
or by mail, by or at the direction of the president, the secretary or the
persons calling the meeting, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the stockholder at his address
as it appears on the stock transfer books of the Corporation, with postage
thereon prepaid. Such further or earlier notice shall be given as may be
required by law. The signing by a stockholder of a written waiver of notice of
any stockholders' meeting, whether before or after the time stated in such
waiver, shall be equivalent to the receiving by him of all notice required to be
given with respect to such meeting. Attendance by a person at a stockholders'
meeting shall constitute a waiver of notice of such meeting except when a person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. No notice of any adjournment of any meeting shall be
required.
Section 3.4. Closing of Transfer Books and Fixing Record Date.
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In order that the Corporation may determine the stockholders entitled to
(i) receive notice of or to vote at any meeting of stockholders or adjournment
thereof or entitled to express consent to corporate action in writing without a
meeting; (ii) receive payment of any dividend or other distribution or allotment
of any rights; or (iii) 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, in advance, a record date which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. If no record date is fixed, the record date shall be
as follows: the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; if in accordance with Section 3.7 corporate action without a meeting of
stockholders is to be taken, the record date for determining stockholders
entitled to express consent to such corporate action in writing, when no prior
action by the board of directors is necessary, shall be the day on which the
first written consent is expressed; and, the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating hereto.
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Section 3.5. Voting List.
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The officer or agent having charge of the stock transfer books for shares
for the Corporation shall make, at least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each such stockholder, which list,
for a period of ten days prior to such meeting, shall be kept on file at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall be subject to lawful inspection by any
stockholder at any time during the usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder during the whole time of the meeting.
Section 3.6. Quorum.
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(a) Except as otherwise provided by law, by the Certificate of
Incorporation or these by-laws, the holders of a majority of the shares entitled
to vote and represented in person or by proxy shall constitute a quorum at a
meeting of stockholders, but the stockholders present at any meeting, although
representing less than a quorum, may from time to time adjourn the meeting to
some other day and hour, without notice other than announcement at the meeting.
If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at such meeting. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally called.
(b) The vote of the holders of a majority of the shares outstanding and
entitled to vote and represented at a meeting at which a quorum is present shall
be the act of the stockholders, unless the vote of a greater number is required
by law or the Certificate of Incorporation.
Section 3.7. Voting at Meetings.
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Each stockholder shall have one vote for each outstanding share of stock
entitled to vote at any meeting, which is registered in his name on the record
date for the meeting except to the extent that the Certificate of Incorporation
or the laws of the State of Delaware provide otherwise. Shares registered in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the by-laws (or comparable instrument) of such corporation may
prescribe, or in the absence of such provision, as the board of directors (or
comparable body) of such corporation may determine. Shares registered in the
name of a deceased person may be voted by his executor or administrator, either
in person or by proxy.
Section 3.8. Proxies.
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A stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to a corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy executed in writing
by the stockholder; but, no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. Proxies for use at any meeting of
stockholders shall be filed with the Secretary, or such other officer as the
Board of Directors may from time to time determine by resolution, before or at
the time of the meeting. All proxies shall be received and taken charge of and
all ballots shall be received and canvassed by the secretary of the meeting who
shall decide all questions touching upon the qualification of voters, the
validity of the proxies, and the acceptance or rejection of votes, unless an
inspector or inspectors shall have been appointed by the chairman of the
meeting, in which event such inspector or inspectors shall decide all such
questions. Should a proxy designate two or more persons to act as proxies,
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unless such instrument shall provide the contrary, a majority of such persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, each proxy so attending shall be entitled to exercise such powers in
respect of the same portion of the shares as he is of the proxies representing
such shares.
Section 3.9. Balloting.
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Upon the demand of any stockholder, the vote upon any question before the
meeting shall be by written ballot. At each meeting, inspectors of election may
be appointed by the presiding officer of the meeting; and, at any meeting for
the election of directors, inspectors shall be so appointed on the demand of any
stockholder present or presented by proxy and entitled to vote in such election
of directors. No director or candidate for the office of director shall be
appointed as such inspector. If the vote of stockholders for the election of
directors by written ballot, the number of votes cast by shares in the election
of directors shall be recorded in the minutes.
Section 3.10. Voting Rights, Prohibition of Cumulative Voting for
Directors.
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Each outstanding share of common stock and to the extent set forth in the
Certificate of Incorporation each outstanding share of preferred stock shall be
entitled to one vote for all matters submitted to a vote at a meeting of
stockholders. No stockholder shall have the right to cumulate his votes for the
election of directors but each share shall be entitled to one vote in the
election of each director. In the case of any contested election for any
directorship, the candidate for such position receiving a plurality of the votes
cast in such election shall be elected to such position.
Section 3.11. Record of Stockholders.
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The Corporation shall keep at its principal business office, or the office
of its transfer agents or registers, a record of its stockholders, giving the
names and addresses of all stockholders and the number and class of the shares
held by each.
Section 3.12. Treasury Stock.
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The Corporation shall not vote, directly or indirectly, shares of its own
stock owned by it and such shares shall not be counted for quorum purposes.
Section 3.13. Action Without Meeting.
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Unless otherwise provided in the Certificate of Incorporation, any action
permitted or required by law, the Certificate of Incorporation or these by-laws
to be taken at a meeting of stockholders, 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
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than a unanimous written consent shall be given by the
Secretary to those stockholders who have not consented in writing.
ARTICLE IV
The Board of Directors
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Section 4.1. Power; Number; Term of Office.
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(a) The business and affairs of the Corporation shall be managed by and
under the direction of the Board of Directors, and subject to the restrictions
imposed by law or the Certificate of Incorporation, they may exercise all powers
of the Corporation.
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(b) The number of directors, which shall constitute the whole Board of
Directors, shall be five and thereafter shall be as determined from time to time
by resolution of the Board of Directors (provided that no decrease in the number
of directors which would have the effect of shortening the term of an incumbent
director may be made by the Board of Directors). Each director shall hold office
for the term for which he is elected, until a successor shall have been elected
and qualified or until his earlier death, resignation or removal.
Unless otherwise provided in the Certificate of Incorporation, directors
need not be stockholders nor residents of the State of Delaware.
Section 4.2. First Meetings.
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Each newly elected Board of Directors may hold its first meeting for the
purpose of organization and the transaction of business, if a quorum is present,
immediately after and at the same place as the annual meeting of the
stockholders. Notice of such meeting shall not be required. At the first meeting
of the Board of Directors in each year at which a quorum shall be present, held
after the annual meeting of stockholders, the Board of Directors shall proceed
to the election of the officers of the Corporation. Regular meetings of the
board of directors shall be held at such times and places as the Board of
Directors shall determine by resolution. No notice of any kind of such regular
meetings need to be given.
Section 4.3. Special Meetings.
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Special meetings of the Board of Directors shall be held at any time by
call of the chairman of the board, the president, or upon written request of any
two directors by the secretary. The secretary shall give notice of each special
meeting to each director at his usual business or residence address by mail at
least three days before the meeting or by telegraph or telephone at least 24
hours before such meeting. Except as otherwise provided by law, by the
Certificate of Incorporation, or by these by-laws, such notice need not specify
the business to be transacted at, or the purpose of, such meeting. No notice
shall be necessary for any adjournment of any meeting. The signing of a written
waiver of notice of any special meeting by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
equivalent to the receiving of such notice. Attendance of a director at a
meeting shall also constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express and announced purpose of objecting,
at the beginning of the meeting, to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Section 4.4. Quorum.
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A majority of the number of directors shall constitute a quorum for the
transaction of business and the act of not less than a majority of such quorum
of the directors shall be required in order to constitute the act of the Board
of Directors, unless the act of a greater number shall be required by law, by
the Certificate of Incorporation or by these by-laws.
Section 4.5. Procedure at Meetings.
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The Board of Directors, at each first meeting held immediately following
the annual meeting of stockholders, may appoint one of their number as chairman
of the board. The chairman of the board, if one is appointed, shall preside at
meetings of the board. In his absence at any meeting or if one is not appointed,
any officer authorized by these by-laws or any member of the board selected by
the members present shall preside. The secretary of the Corporation shall act as
secretary at all meetings of the board. In his absence the presiding officer of
the meeting may designate any person to act as secretary. At meetings of the
Board of Directors, the business shall be transacted in such order as the board
may from time to time determine.
Section 4.6. Presumption of Assent.
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Any director of the Corporation who is present at a meeting of the board of
directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
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adjournment thereof or shall forward such dissent by registered mail to the
secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
Section 4.7. Action Without a Meeting.
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Any action required by statute or permitted to be taken at a meeting of the
directors of the Corporation, or of any committee thereof, may be taken without
a meeting if a consent in writing, setting forth the action so taken, shall be
signed by all directors or all committee members as the case may be, and if the
consent in writing shall be filed with the minutes of the proceeding of the
board or committee. Such consent shall have the same force and effect as a
unanimous vote at a meeting, and may be stated as such in any document or
instrument filed with the Secretary of State of Delaware.
Section 4.8. Compensation.
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Directors shall receive as compensation for their services as directors,
and for reimbursement of reasonable expenses of attendance at meetings, if any,
such cash amounts or other consideration as shall be determined by resolution of
the board of directors. Nothing herein shall preclude any director from serving
the Corporation in any other capacity or receiving compensation therefor.
Section 4.9. Committee of Directors.
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The board of directors, by resolution adopted by a majority of the whole
board, may designate one or more committees, including an executive committee,
each such committee to consist of two or more of the directors of the
Corporation. Any committee may exercise such authority of the board of directors
in the business and affairs of the Corporation as the board of directors may by
resolution duly delegate to it except as prohibited by law. The designation of
any committee and the delegation thereto of authority shall not operate to
relieve the board of directors, or any member thereof, of any responsibility
imposed upon it or him by law. Any member of a committee may be removed by the
board of directors by the affirmative vote of a majority of the whole board
whenever in the judgment of the board the best interests of the Corporation will
be served thereby.
Each committee shall keep regular minutes of its proceedings and report the
same to the board of directors when required. The minutes of the proceedings of
each committee shall be placed in the minute book of the Corporation.
Section 4.10. Vacancies; Increases in the Number of Directors.
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Unless otherwise provided in the Certificate of Incorporation, 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,
although less than a quorum, or a sole remaining director; and any director so
chosen shall hold office until the next annual election and until his successor
shall be duly elected and shall qualify, unless sooner displaced.
ARTICLE V
Officers
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Section 5.1. Number.
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The officers of the Corporation shall consist of a president, one or more
vice presidents, a secretary and a treasurer; and, in addition, such other
officers, including a chairman of the board of directors, and assistant officers
and agents, as may be deemed necessary or desirable. Officers shall be elected
or appointed by the board of directors. Any two or more offices may be held by
the same person unless the certificate of incorporation or by-laws otherwise
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provide. In its discretion, the board of directors may leave unfilled any office
except those of president, treasurer and secretary.
Section 5.2. Election; Term; Qualification.
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Officers shall be chosen by the board of directors annually at the meeting
of the board of directors following the annual stockholders' meeting. Each
officer shall hold office until his successor has been chosen and qualified, or
until his death, resignation or removal.
Section 5.3. Removal.
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Any officer or agent elected or appointed by the board of directors may be
removed by the board of directors whenever in its judgment the best interests of
the Corporation will be served thereby; but, such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create any contract
rights.
Section 5.4. Vacancies.
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Any vacancy in any office of any officer for any cause may be filled by the
board of directors at any meeting.
Section 5.5. Duties.
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The officers of the Corporation shall have such powers and duties, except
as modified by the board of directors, as generally pertain to their offices,
respectively, as well as such powers and duties as from time to time shall be
conferred by the board of directors and by these by-laws.
Section 5.6. Chairman of the Board.
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The chairman shall be the chief executive officer of the Corporation and
shall have general direction of the affairs of the Corporation and general
supervision over its several officers, subject however, to the control of the
board of directors. He shall preside at all meetings of the stockholders and the
board of directors. The chairman shall at each annual meeting, from time to
time, report to the stockholders and to the board of directors all matters
within his knowledge which, in his opinion, the interest of the Corporation may
require to be brought to the notice of such persons. The chairman of the board
shall formulate and submit to the board of directors matters of general policy
for the Corporation and shall perform such duties as usually appertain to the
office or as may be prescribed by the board of directors.
Section 5.7. The President.
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The president may sign, with the secretary or an assistant secretary, any
or all certificates of stock of the Corporation. He shall preside at all
meetings of the stockholders if a chairman of the board has not been elected,
shall sign and execute in the name of the Corporation (i) all contracts or other
instruments authorized by the board of directors, and (ii) all contracts or
instruments in the usual and regular course of business, pursuant to Section 6.2
hereof, except in cases when the signing and execution thereof shall be
expressly delegated or permitted by the board or by these by-laws to some other
officer or agent of the Corporation; and, in general, shall perform all duties
incident to the office of president, and such other duties as from time to time
may be assigned to him by the board of directors or as are prescribed by these
by-laws.
Section 5.8. The Vice Presidents.
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At the request of the president, or in his absence or disability, the vice
presidents, in the order of their election (unless otherwise determined by the
board of directors), shall perform the duties of the president, and, when so
acting, shall have all the powers of, and be subject to all restrictions upon,
the president. The vice presidents shall perform such other duties as may, from
time to time, be assigned to them by the board of directors or the president. A
vice president may sign, with the secretary or an assistant secretary,
certificates of stock of the Corporation.
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Section 5.9. Secretary.
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The secretary shall keep the minutes of all meetings of the stockholders,
of the board of directors, and of the executive committee, if any, of the board
of directors, in one or more books provided for such purpose and shall see that
all notices are duly given in accordance with the provisions of these by-laws or
as required by law. He shall be custodian of the corporate records and of the
seal of the Corporation and see that the seal of the Corporation is affixed to
all documents the execution of which on behalf of the Corporation under its seal
is duly authorized; shall have general charge of the stock certificate books,
transfer books and stock ledgers, and such other books and papers of the
Corporation as the board of directors may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon application
at the office of the Corporation during business hours; and in general shall
perform all duties and exercise all powers incident to the office of the
secretary and such other duties and powers as the board of directors or the
president from time to time may assign to or confer on him.
Section 5.10. Treasurer.
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The treasurer shall keep complete and accurate records of account, showing
at all times the financial condition of the Corporation. He shall be the legal
custodian of all money, notes, securities and other valuables, which may, from
time to time come into the possession of the Corporation. He shall furnish at
meetings of the board of directors, or whenever requested, a statement of the
financial condition of the Corporation, and shall perform such other duties as
these by-laws may require or the board of directors may prescribe.
Section 5.11. Assistant Officers.
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Any assistant secretary or assistant treasurer appointed by the board of
directors shall have the power to perform, and shall perform, all duties
incumbent upon the secretary or treasurer of the Corporation, respectively,
subject to the general direction of such respective officers, and shall perform
such other duties as these by-laws may require or the board of directors may
prescribe.
Section 5.12. Salaries.
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The salaries or other compensation of the officers shall be fixed from time
to time by the board of directors. No officer shall be prevented from receiving
such salary or other compensation by reason of the fact that he is also a
director of the Corporation.
Section 5.13. Bonds of Officers.
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The board of directors may secure the fidelity of any officer of the
corporation by bond or otherwise, on such terms and with such surety of
sureties, conditions, penalties or securities as shall be deemed proper by the
board of directors.
Section 5.14. Delegation.
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The board of directors may delegate temporarily the powers and duties of
any officer of the Corporation, in case of his absence or for any other reason,
or any other officer, and may authorize the delegation by any officer of the
Corporation of any of his powers and duties to an agent or employee, subject to
the general supervision of such officer.
ARTICLE VI
Miscellaneous
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Section 6.1. Dividends.
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Dividends on the outstanding shares of the Corporation, if any, may be
declared by the board of directors at any regular or special meeting, subject to
the provisions of the certificate of incorporation and the General Corporation
Law of the State of Delaware.
Subject to limitations upon the authority of the board of directors imposed
by law or by the certificate of incorporation, the declaration of and provision
for payment of dividends shall be at the discretion of the board of directors.
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Section 6.2. Contracts.
------------ ----------
The president shall have the power authority to execute, on behalf of the
Corporation, contracts or instruments in the usual and regular course of
business, and in addition, the board of directors may authorize any officer or
officers, agent or agents, of the Corporation, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances. Unless so authorized by the board of directors or by these by-laws,
no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement, or to pledge its credit or to render
it pecuniarily liable for any purpose or in any amount.
Section 6.3. Checks, Drafts, etc.
------------ --------------------
All checks, drafts, or other orders for the payment of money, notes, or
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officers or employees of the Corporation as shall from time to
time be authorized pursuant to those by-laws or by resolution of the board of
directors.
Section 6.4. Depositories.
------------ -------------
All funds of the Corporation shall be deposited from time to time to the
credit of the Corporation in such banks or other depositories as the board of
directors may from time to time designate, and upon such terms and conditions as
shall be fixed by the board of directors. The board of directors may from time
to time authorize the opening and maintaining within any such depository as it
may designate, of general and special accounts, and may make such special rules
and regulations with respect thereto as it may deem expedient.
Section 6.5. Endorsement of Stock Certificates.
------------ ----------------------------------
Subject to the specific directions of the board of directors, any share or
shares of stock issued by any corporation and owned by the Corporation,
including reacquired shares of the Corporation's own stock, may, for sale or
transfer, be endorsed in the name of the Corporation by the president, or any
vice president; and such endorsement may be attested or witnessed by the
secretary or any assistant secretary either with or without the affixing thereto
of the corporate seal.
Section 6.6. Corporate Seal.
------------ ---------------
The corporate seal shall be in such form as the board of directors shall
approve, and such seal, or a facsimile thereof, may be impressed on, affixed to,
or in any manner reproduced upon, instruments of any nature required to be
executed by officers of the Corporation.
Section 6.7. Fiscal Year.
------------ ------------
The fiscal year of the Corporation shall begin and end on such dates as the
board of directors at any time shall determine.
Section 6.8. Books and Records.
------------ ------------------
The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its stockholders and board
of directors, and shall keep at its registered office or principal place of
business, or at the office of its transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders and the number
and class of the shares held by each.
Section 6.9. Resignations.
------------ -------------
Any director or officer may resign at any time. Such resignations shall be
made in writing and shall take effect at the time specified therein, or, if no
time is specified, at the time of its receipt by the president or secretary. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
Section 6.10. Indemnification of Directors, Officers,
Employees and Agents.
---------------------
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(a) Right to Indemnification.
-----------------------------
Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal representative,
is or was or has agreed to become a director or officer of the Corporation or is
or was serving or has agreed to serve 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
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving or having agreed to serve as a director or officer, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, 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 against all expense, liability and loss (including without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to serve in the capacity which initially entitled
such person to indemnity hereunder and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person 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 6.10 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;
provided, however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a current, former or proposed director or
officer in his or her capacity as a director or officer or proposed director or
officer (and not in any other capacity in which service was or is or has been
agreed to be, rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such indemnified person, to repay all
amounts so advanced if it shall ultimately be determined that such indemnified
person is not entitled to be indemnified under this Section 6.10 or otherwise.
(b) Indemnification of Employees and Agents.
--------------------------------------------
The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation, individually or as a
group, with the same scope and effect as the indemnification of directors and
officers provided for in this Section 6.10.
(c) Right of Claimant to Bring Suit.
------------------------------------
If a written claim received by the Corporation from or on behalf of an
indemnified party under this Section 6.10 is not paid in full by the Corporation
within ninety days after such receipt, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense, of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. 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
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
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stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(d) Nonexclusivity of Rights.
-----------------------------
The right to indemnification and the advancement and payment of expenses
conferred in this Section 6.10 shall not be exclusive of any other right which
any person may have or hereafter acquire under any law (common or statutory),
provision of the Certificate of Incorporation of the Corporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
(e) Insurance.
--------------
The Corporation may maintain insurance, at its expense, to protect itself
and any person who is or was serving as a director, officer, employee or agent
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any 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 Delaware General Corporation
Law.
(f) Savings Clause.
-------------------
If this Section VI or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify and hold harmless each director and officer of the Corporation, as to
costs, charges and expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Section 6.10 that shall not have
been invalidated and to the fullest extent permitted by applicable law.
(g) Definitions.
----------------
For purposes of this Section, reference to the "Corporation" shall include,
in addition to the Corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger prior to
(or, in the case of an entity specifically designated in a resolution of the
Board of Directors, after) the adoption hereof and which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 6.11. Meetings by Telephone.
------------- ----------------------
Subject to the provisions required or permitted by these by-laws or the
laws of the State of Delaware for notice of meetings, members of the board of
directors, or members of any committee designated by the board of directors, may
participate in and hold any meeting required or permitted under these by-laws by
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at such a meeting,
except where a person participates in the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
Section 6.12. Facsimile Signatures.
------------- ---------------------
In addition to the provisions for the use of facsimile signatures elsewhere
specifically authorized in these by-laws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors.
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Section 6.13. Reliance upon Books, Reports and Records.
------------- -----------------------------------------
Each director and each member of any committee designated by the Board of
Directors shall, in the performance of his duties, be fully protected in relying
in good faith upon the books of accounts or reports made to the Corporation by
any of its officers, or by an independent certified public accountant, or by an
appraiser selected with reasonable care by the Board of Directors or by any such
committee, or in relying in good faith upon other records of the Corporation.
Section 6.14. Amendments.
------------- -----------
If provided in the Certificate of Incorporation of the Corporation, the
Board of Directors shall have the power to adopt, amend and repeal from time to
time by-laws of the Corporation, subject to the right of the stockholders
entitled to vote with respect thereto to amend or repeal such by-laws as adopted
or amended by the Board of Directors.
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I, the undersigned Secretary of Blue Dolphin Energy Company, hereby certify
that the foregoing is a true and correct copy of the Bylaws of said Corporation,
adopted by the Board of Directors of the Corporation on the __ day of December,
2007.
/s/ Gregory W. Starks
--------------------------
Gregory W. Starks, Secretary
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