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EXHIBIT 3.4
SECOND AMENDED AND RESTATED BYLAWS
OF
WESTPORT RESOURCES CORPORATION
A DELAWARE CORPORATION
(THE "COMPANY")
(ADOPTED AS OF AUGUST 22, 2000)
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SECOND AMENDED AND RESTATED BYLAWS
OF
WESTPORT RESOURCES CORPORATION
1. OFFICES
The Company may have offices and places of business at such
places, within or without the State of Delaware, as the Board of Directors may
from time to time determine or the business of the Company may require.
2. MEETING OF STOCKHOLDERS
2.1 Place of Meetings.
All meetings of the stockholders for the election of directors
shall be held at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver thereof.
2.2 Annual Meeting.
Annual meetings of stockholders commencing with the year 2000
shall be held on the date and time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver thereof.
2.3 Special Meetings.
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by the Delaware General Corporation Law (the
"DGCL"), the Certificate of Incorporation or the Shareholders Agreement, by and
among the Company, Westport Energy Company and Equitable Production Company,
dated as of March 9, 2000 (the "SHAREHOLDERS AGREEMENT"), may be called only by
the Chairman of the Board of Directors, the President and the Secretary;
provided, however, that so long as a stockholder has the power pursuant to the
Shareholders Agreement to nominate at least two directors, any director
nominated by such stockholder can also call a special meeting of the
stockholders. A special meeting of the stockholders shall be called by the
Chairman of the Board of Directors, the President or the Secretary where
directed by resolution of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting.
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2.4 Notice.
Written notice of each meeting of stockholders shall be given in
the manner prescribed in Article 4. Such notice shall state the place, date and
hour of the meeting and, in the case of a special meeting, shall state the
purpose or purposes for which the meeting is called. In the case of a meeting to
vote on a proposed merger or consolidation, such notice shall state the purpose
of the meeting and shall contain a copy of the agreement or brief summary
thereof and, in the case of a meeting to vote on a proposed sale, lease or
exchange of all of the Company's assets, such notice shall specify that such a
resolution shall be considered. Such notice shall be given to each stockholder
of record entitled to vote at the meeting not less than ten nor more than 60
days prior to the meeting, except that where the matter to be acted on is a
merger or consolidation of the Company or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than 20 nor
more than 60 days prior to such meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
2.5 Business.
Business transacted at any special meeting of stockholders shall
be limited to the matters stated in the notice, those matters brought before the
meeting by the Board of Directors, those matters brought before the meeting by a
stockholder upon advance notice in compliance with Section 2.7 and those matters
deemed by the chairman of the meeting to be proper subjects for such meeting.
2.6 Quorum and Adjournment.
Except as otherwise provided by the DGCL, the Certificate of
Incorporation or the Shareholders Agreement, the holders of a majority of the
shares of the Company issued and outstanding and entitled to vote at such
meeting, present in person or represented by proxy, shall be necessary to and
shall constitute a quorum for the transaction of business at each meeting of
stockholders. If a quorum shall not be present at the time fixed for any
meeting, the stockholders present, in person or by proxy, and entitled to vote
thereat shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
At such adjourned meeting at which a quorum shall be present, any business may
be transacted that might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty 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 the meeting.
2.7 Notice of Stockholder Business and Nominations.
(a) For nomination or other business to be properly brought before
an annual meeting by a stockholder pursuant to Section 2.5 above, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Company and such business must be a proper subject for stockholder action
under the Delaware General Corporation Law. To be timely, a
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stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Company not less than 70 days nor more than 90 days
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 advanced by
more than 20 days, or delayed by more than 70 days, from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of business
on the later of the 70th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; (ii) 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
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made (X) the name and address of such stockholder, as they appear on the
Company's books, and of such beneficial owner and (Y) the class and number of
shares of the Company which are owned beneficially and of record by such
stockholder and such beneficial owner.
(b) Notwithstanding anything in the second sentence of Section
2.7(a) above to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Company at least 80 days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by Section 2.7(a) 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 at the principal executive offices of the Company
not later than the close of business on the tenth day following the day on which
such public announcement is first made by the Company.
(c) Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Company who is entitled to vote at the meeting, who complies
with the notice procedures set forth in this Section 2.7(c) and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Company. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice as required by Section 2.7(a) shall be delivered to the
Secretary at the principal executive office of the Company not earlier than the
90th day prior to such special meeting and not later than the close of business
on the later of the 70th day prior to such special meeting or the tenth day
following the day on which
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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.
2.8 Voting.
Unless otherwise provided in the Certificate of Incorporation or
the Shareholders Agreement, and subject to the provisions of Section 6.4, each
stockholder shall be entitled to one vote, in person or by proxy, for each share
of capital stock held by such stockholder. If the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, every
reference in these Bylaws to a majority or other proportion of stock shall refer
to such majority or other proportion of the votes of such stock.
2.9 Vote Required.
When a quorum is present at any meeting, in all matters other than
the election of directors, the vote of the holders of a majority of the shares
present in person or represented by proxy and entitled to vote on the subject
matter shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the DGCL, the Certificate of
Incorporation or the Shareholders Agreement, a different vote is required in
which case such express provision shall govern and control the decision of such
question. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors.
2.10 Voting Lists.
The officer who has charge of the stock ledger of the Company
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
for examination by any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
2.11 Proxy.
Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by proxy, 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
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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
Company generally.
2.12 Stockholder Action.
Any action by stockholders must be taken at an annual or special
meeting of stockholders of the Company. Stockholder action by written consent in
lieu of a meeting is not allowed.
3. DIRECTORS
3.1 Board of Directors.
The business and affairs of the Company shall be managed by or
under the direction of its Board of Directors, which may exercise all such
powers of the Company and do all such lawful acts and things, except as provided
in the Certificate of Incorporation or the Shareholders Agreement.
3.2 Number, Election and Tenure.
The number of directors that shall constitute the entire Board of
Directors shall not be less than one nor more than 15. Within the limits
specified herein and except as otherwise specified in the Certificate of
Incorporation or the Shareholders Agreement, the number of directors shall be
determined by a resolution of the Board of Directors. The directors shall be
elected at the annual meeting of the stockholders, except as provided in the
Certificate of Incorporation, the Shareholders Agreement or Section 3.3 of these
Bylaws, and each director elected shall hold office until his successor is duly
elected and qualified or until his earlier resignation or removal. Any director
may resign at any time upon written notice to the Company. Directors need not be
stockholders of the Company.
3.3 Vacancies. Except as otherwise provided in the Certificate of
Incorporation or the Shareholders Agreement:
(a) Vacancies in the Board of Directors 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
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and qualified, or until their earlier resignation or removal.
(b) If at any time, by reason of death or resignation or other
cause, the Company should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws or
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may apply to the Court of Chancery for a decree summarily ordering an election
as provided by the DGCL.
(c) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board of Directors (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
3.4 Meetings.
The Board of Directors may hold its meetings, and have an office
or offices, within or without the State of Delaware.
3.5 Notice.
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors. A special meeting of the Board of Directors may be
called by the President or the Secretary and, so long as a stockholder has the
power pursuant to the Shareholders Agreement to nominate at least two directors,
any director nominated by such stockholder can also call a special meeting of
the Board of Directors. The President shall call a special meeting of the Board
of Directors on the written request of such director. Notice of each special
meeting of the Board of Directors, specifying the place, day and hour of the
meeting, shall be given in the manner prescribed in Article 4 and in this
Section 3.5, either personally or as hereinafter provided, to each director at
least (i) 24 hours before the meeting if such notice is delivered personally or
by means of telephone, courier or telecopy; (ii) two days before the meeting if
such notice is delivered by a recognized express delivery service; and (iii)
five days before the meeting if such notice is delivered through the United
States mail. Neither the business to be transacted at, nor the purpose of any
meeting of the Board of Directors, need be specified in the notice of the
meeting.
3.6 Quorum and Voting.
Except as may be otherwise specifically provided by the DGCL, the
Certificate of Incorporation or the Shareholders Agreement:
(a) A majority of the total number of directors shall constitute a
quorum for the transaction of business.
(b) The vote of the majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors.
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(c) Members of the Board of Directors or members of any committee
designated by the Board of Directors may participate in meetings of the Board of
Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
presence in person at such meeting.
3.7 Consents.
Unless otherwise restricted by the Certificate of Incorporation or
the Shareholders Agreement, any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or committee.
3.8 Committees.
Except as otherwise specified in the Certificate of Incorporation
or the Shareholders Agreement:
(a) The Board of Directors may designate one or more committees,
each committee to consist of one or more directors of the Company.
(b) The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
(c) Any such committee, to the extent provided in the resolution,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Company, and may
authorize the seal of the Company to be affixed to all papers that may require
it; provided, however, that no such committee shall have the power or authority
in reference to the following matters: (i) approving, adopting or recommending
to the stockholders any action or matter expressly required by the DGCL to be
submitted to stockholders for approval or (ii) adopting, amending or repealing
any bylaw of the Company.
(d) In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(e) Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors.
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3.9 Committee Minutes.
Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
3.10 Compensation of Directors.
(a) The directors as such, and as members of any standing or
special committee, may receive such compensation for their services as may be
fixed from time to time by resolution of the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the Company
in any other capacity and receiving compensation therefor.
(b) The directors may be paid their expenses, if any, for
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.11 Removal of Directors.
Unless otherwise restricted by the DGCL, the Certificate of
Incorporation or the Shareholders Agreement, any director may be removed at any
annual or special stockholders' meeting upon the affirmative vote of (i) a
majority of the directors then in office and (ii) the holders of a majority of
the outstanding shares of voting stock of the Company at that time entitled to
vote thereon; provided, however, that such director may be removed only for
cause and shall receive a copy of the charge against him, delivered to him
personally or by mail at his last known address at least ten days prior to the
date of the stockholders' meeting.
4. NOTICES
4.1 Form of Notice.
Whenever, under the provisions of the DGCL, the Certificate of
Incorporation or these Bylaws, notice is required to be given to any director or
stockholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by first class or express mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Company, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail,
except that, in the case of directors, notice sent by first class mail shall be
deemed to have been given five days after being deposited in the United States
mail. Whenever, under these Bylaws, notice may be given by courier or telecopy,
notice shall be deemed to have been given 24 hours after being deposited with a
courier service for delivery or, in the case of telecopy, when dispatched.
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4.2 Waiver of Notice.
Whenever notice is required to be given under any provisions of
the DGCL, the Certificate of Incorporation or these Bylaws, a written waiver,
signed by the person or persons entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or the Bylaws.
5. OFFICERS
5.1 Selection of Officers.
The officers of the Company shall be chosen by the directors and
shall consist of a chairman of the board and chief executive officer, president
and secretary. The Board of Directors may also choose a chief executive officer,
chief operating officer, treasurer, one or more vice presidents, and one or more
assistant secretaries. Any number of offices may be held by the same person,
unless the Shareholders Agreement, the Certificate of Incorporation or these
Bylaws otherwise provide. A failure to elect officers shall not dissolve or
otherwise affect the Company. The Board of Directors may also choose such other
officers, or leave positions vacant, as it shall deem necessary.
5.2 Term of Office, Removal and Vacancies.
Each officer of the Company shall hold his office until his
successor is duly elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to the Company.
Any officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring by death, resignation, removal or otherwise, in any office of
the Company, shall be filled by the Board of Directors.
5.3 Compensation.
The salaries of the officers of the Company may be fixed by the
Board of Directors.
5.4 Bond.
The Company may secure the fidelity of any or all of its officers
or agents by bond or otherwise.
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5.5 Chairman of the Board and Chief Executive Officer.
The chairman of the board and chief executive officer shall
exercise such powers and perform such duties as shall be assigned to or required
of him from time to time by the Board of Directors or these bylaws. The chairman
of the board and chief executive officer shall preside when present at all
meetings of the stockholders and the Board of Directors. The chairman of the
board and chief executive officer may execute bonds, mortgages and other
contracts requiring a seal under the seal of the Company, except where required
or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Company.
5.6 President.
The president shall advise and counsel the chairman of the board
and other officers and shall exercise such powers and perform such duties as
shall be assigned to or required of him from time to time by the Board of
Directors or these bylaws. In the absence of the chairman of the board or in the
event of his inability or refusal to act, the president shall perform the duties
and exercise the powers of the chairman of the board. The president may execute
bonds, mortgages and other contracts requiring a seal under the seal of the
Company, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Company.
5.7 Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to him by the Board of Directors or President, and, in the absence or
disability of the President, the most senior in rank of the Vice Presidents
shall perform the duties of the President.
5.8 Secretary.
The Secretary shall attend all meetings of the Board of Directors
and all meetings of the stockholders and record all the proceedings of the
meetings of the Board of Directors and the stockholders in a book to be kept for
that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President.
He shall be the custodian of the seal of the Company and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The Board of Directors may give general authority
to any other officer to affix the seal of the Company and to attest the affixing
by his signature.
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5.9 Assistant Secretary.
The Assistant Secretary, if any, or Assistant Secretaries, if more
than one, shall perform the duties of the secretary in his or her absence and
shall perform such other duties as the Board of Directors, the President or the
Secretary may from time to time designate.
5.10 Treasurer.
The Treasurer shall have custody of the corporate funds and
securities and shall keep, or cause to be kept, full and accurate amounts of
receipts and disbursements in books kept for that purpose. He shall deposit all
monies, and other valuable effects, in the name and to the credit of the
Company, in such depository as the Board of Directors shall designate. As
directed by the Board of Directors or the President, he shall disburse monies of
the Company, taking proper vouchers for such disbursements and shall render to
the President and directors an account of all his transactions as Treasurer and
of the financial condition of the Company. In addition, he shall perform all the
usual duties incident to the office of Treasurer.
6. CERTIFICATES OF STOCK AND TRANSFERS
6.1 Certificates of Stock; Uncertificated Shares.
The shares of the Company shall be represented by certificates,
provided that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Company.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the Company by, the Chairman of the Board of Directors, the
President or any Vice President, and countersigned by the Secretary or any
Assistant Secretary or the Treasurer, representing the number of shares
registered in certificate form. Any or all the signatures on the certificate may
be a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Company with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
6.2 Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificate or Uncertificated Shares.
The Board of Directors may issue a new certificate of stock or
uncertificated shares in place of any certificate therefore issued by it,
alleged to have been lost, stolen or destroyed, and the Company may require the
owner of the lost, stolen or destroyed certificate, or his legal representative
to give the Company a bond sufficient to indemnify it against any claim
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that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate or
uncertificated shares.
6.3 Record Date.
In order that the Company may determine the stockholders entitled
to notice of, or to vote at, any meeting of stockholders or at any adjournment
thereof in respect of which a new record date is not fixed, or to consent to
corporate action without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
date shall not be more than 60 nor less than ten days before the date of any
such meeting, nor more than ten days after the date on which the date fixing the
record date for the consent of stockholders without a meeting is adopted by the
Board of Directors, nor more than 60 days prior to any other such action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
6.4 Registered Stockholders.
The Company shall be entitled to recognize the exclusive right of
a person registered on its books as of any record date fixed or determined
pursuant to Section 6.3 as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, 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, regardless of whether it shall have express or other notice
thereof, except as otherwise provided by the DGCL.
7. GENERAL PROVISIONS
7.1 Dividends.
Dividends upon the capital stock of the Company, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting in accordance with the
DGCL. Dividends may be paid in cash, in property, or in shares of the Company's
capital stock, subject to the provisions of the Certificate of Incorporation.
7.2 Liability of Directors as to Dividends or Stock Redemption.
A member of the Board of Directors, or a member of any committee
designated by the Board of Directors, shall be fully protected in relying in
good faith upon the records of the
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Company and upon such information, opinions, reports or statements presented to
the Company by any of its officers or employees, or committees of the Board of
Directors, or by any other person as to matters the director reasonably believes
are within such other person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, as to the
value and amount of the assets, liabilities and/or net profits of the Company,
or any other facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid, or with which
the Company's stock might properly be purchased or redeemed.
7.3 Reserve for Dividends.
Before declaring any dividend, there may be set aside out of any
funds of the Company available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Company, or for such other purpose as the
directors shall think conducive to the interest of the Company, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
7.4 Signing Checks, Notes, etc.
All checks or other orders for the payment of money and all notes
or other instruments evidencing indebtedness of the Company shall be signed on
its behalf by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate, or, if not so designated, by
the President or any Vice President of the Company.
7.5 Fiscal Year.
The fiscal year of the Company shall end on December 31 of each
year or as otherwise determined by resolution of the Board of Directors.
7.6 Seal.
The corporate seal shall have inscribed thereon the name of the
Company, the year of its organization and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
7.7 Voting of Securities of Other Companies
In the event that the Company shall, at any time or from time to
time, own and have power to vote any securities (including, but not limited to,
shares of stock or partnership interests) of any other issuer, they shall be
voted by such person or persons, to such extent and in such manner, as may be
determined by the Board of Directors or, if not so determined, by any duly
elected officer of the Company.
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8. AMENDMENTS
These Bylaws may be altered, amended or repealed, and new Bylaws
may be adopted, by the stockholders, or by the Board of Directors when such
power is conferred upon the Board of Directors by the Certificate of
Incorporation; provided, however, that any amendment of Section 2.3 as to the
ability of any two directors to call a special meeting of the stockholders, or
Section 3.5 as to the ability of any two directors to call a special meeting of
the Board of Directors, shall require the approval of not less than two-thirds
(2/3) of all of the members of the Board of Directors so long as each of
Westport Energy LLC and ERI Investments, Inc. have the right to designate at
least two (2) Directors.
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