BY-LAWS
OF
EASTERN RESOURCES, INC.
ARTICLE I
OFFICES
Section 1. The registered office of the Corporation shall be at each
location determined by the Board of Directors as may be required by the laws
of its state of incorporation. The Corporation may also have offices at such
other places both within and without its state of incorporation as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without its state of incorporation, as shall be
designated by the Board of Directors. In the absence of any such designation
by the Board of Directors, each such meeting shall be held at the principal
office of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing Directors and transacting such other
business as may properly be brought before the meeting. The date of the
annual meeting shall be determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law, may be called by
the President and shall be called by the Secretary at the direction of a
majority of the Board of Directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given
not less than ten nor more than sixty days before the date of the meeting, to
each stockholder entitled to vote at such meeting. The notice of any special
meeting of stockholders shall state the purpose or purposes for which the
meeting is called.
Section 5. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law. If a quorum is
not present or represented, the holders of the stock present in person or
represented by proxy at the meeting and entitled to vote thereat shall have
power, by the affirmative vote of the holders of a majority of such stock, to
adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
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
original meeting. 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.
Section 6. Voting. At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person or by proxy, the shares of
voting stock owned by such stockholder of record on the record date for the
meeting. When a quorum is present or represented at any meeting, the vote of
the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law
or of the certificate of incorporation, a different vote is required, in
which case such express provision shall govern and control the decision of
such question.
Section 7. Informal Action by Stockholders. Any action required to be
taken at a meeting of the stockholders, or any other action which may be
taken at a meeting of the stockholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
of the stockholders entitled to vote with respect to the subject matter
thereof.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of a Board of
Directors, which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or
done by the stockholders.
Section 2. Number, Qualification and Tenure. The Board of Directors
shall consist of not less than one (1) and not more than
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ten (10) members. Within the limits above specified, the number of Directors
shall be determined from time to time by resolution of the Board of Directors
or stockholders. The Directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3 of this Article, and each
Director elected shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Directors need not be
stockholders.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the number of directors may be filled by a
majority of the Directors then in office though less than a quorum, and each
Director so chosen shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. In the event one (1)
or more vacancies on the Board of Directors occur, the remaining directors
then in office may, by resolution, reduce the size of the Board of Directors
to a number not less than the number of directors then remaining in office.
If there are no Directors in office, then an election of Directors may be
held in the manner provided by law.
Section 4. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without its state of incorporation.
Section 5. Regular Meetings. The Board of Directors shall hold a
regular meeting, to be known as the annual meeting, immediately following
each annual meeting of the stockholders. Other regular meetings of the Board
of Directors shall be held at such time and at such place as shall from time
to time be determined by the Board. No notice of regular meetings need be
given.
Section 6. Special Meetings. Special meetings of the Board may be
called by the President. Special meetings shall be called by the Secretary on
the written request of any Director. No notice of special meetings need be
given.
Section 7. Quorum. At all meetings of the Board a majority of the total
number of Directors shall constitute a quorum for the transaction of business
and the act of a majority of the Directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, except as may
be otherwise specifically provided by law. If a quorum shall not be present
at any meeting of the Board of Directors, the Directors present thereat may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 8. Organization. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If a Chairman of
the Board is not elected or, if elected, is not present, the President or, in
the absence of the President, a Vice Chairman (who is also a member of the
Board and,
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if more than one, in the order designated by the Board of Directors or, in
the absence of such designation, in the order of their election), if any, or
if no such Vice Chairman is present, a Director chosen by a majority of the
Directors present, shall act as chairman at meetings of the Board of
Directors.
Section 9. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more Directors
to constitute an Executive Committee, to serve as such, unless the resolution
designating the Executive Committee is sooner amended or rescinded by the
Board of Directors, until the next annual meeting of the Board or until their
respective successors are designated. The Board of Directors, by resolution
adopted by a majority of the whole Board, may also designate additional
Directors as alternate members of the Executive Committee to serve as members
of the Executive Committee in the place and stead of any regular member or
members thereof who may be unable to attend a meeting or otherwise
unavailable to act as a member of the Executive Committee. In the absence or
disqualification of a member and all alternate members who may serve in the
place and stead of such member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another Director to act
at the meeting in the place of any such absent or disqualified member.
Except as expressly limited by the laws of its state of incorporation
or the Certificate of Incorporation, the Executive Committee shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation between the
meetings of the Board of Directors. The Executive Committee shall keep a
record of its acts and proceedings, which shall form a part of the records of
the Corporation in the custody of the Secretary, and all actions of the
Executive Committee shall be reported to the Board of Directors at the next
meeting of the Board.
Meetings of the Executive Committee may be called at any time by the
Chairman of the Board, the President or any two of its members. No notice of
meetings need be given. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business and, except as
expressly limited by this Section, the act of a majority of the members
present at any meeting at which there is a quorum shall be the act of the
Executive Committee. Except as expressly provided in this Section, the
Executive Committee shall fix its own rules of procedure.
Section 10. Other Committees. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more other
committees, each such committee to consist of one or more Directors. Except
as expressly limited by the laws of its state of incorporation or the
Certificate of Incorporation, any such committee shall have and may exercise
such powers as the
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Board of Directors may determine and specify in the resolution designating
such committee. The Board of Directors, by resolution adopted by a majority
of the whole Board, also may designate one or more additional Directors as
alternate members of any such committee to replace any absent or disqualified
member at any meeting of the committee, and at any time may change the
membership of any committee or amend or rescind the resolution designating
the committee. In the absence or disqualification of a member or alternate
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another Director to act at the
meeting in the place of any such absent or disqualified member, provided that
the Director so appointed meets any qualifications stated in the resolution
designating the committee. Each committee shall keep a record of proceedings
and report the same to the Board of Directors to such extent and such a form
as the Board of Directors may require. Unless otherwise provided in the
resolution designating a committee, a majority of all of the members of any
such committee may select its Chairman, fix its rules or procedure, fix the
time and place of its meetings and specify what notice of meetings, if any,
shall be given.
Section 11. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
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 or
committee.
Section 12. Attendance by Telephone. Members of the Board of Directors,
or of any committee designated by the Board of Directors, may participate in
a meeting of the Board of Directors, or any 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 such participation in a
meeting shall constitute presence in person at the meeting.
Section 13. Compensation. The Board of Directors shall have the
authority to fix the compensation of Directors, which may include their
expenses, if any, of attendance at each meeting of the Board of Directors or
of a committee.
ARTICLE IV
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President and a Secretary. The Board
of Directors may also elect a Chairman
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of the Board, one or more Vice Chairmen, one or more Vice Presidents, a
Treasurer, one or more Assistant Secretaries and Assistant Treasurers and
such other officers and agents as it shall deem appropriate. Any number of
offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board
of Directors. Any vacancy occurring in any office of the Corporation required
by this Article shall be filled by the Board of Directors, and any vacancy in
any other office may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board, when
elected, shall be the Chief Executive Officer of the Corporation and, as
such, shall have general supervision, direction and control of the business
and affairs of the Corporation, subject to the control of the Board of
Directors, shall preside at meetings of stockholders and shall have such
other functions, authority and duties as customarily appertain to the office
of the chief executive of a business corporation or as may be prescribed by
the Board of Directors.
Section 4. President. During any period when there shall be an office
of Chairman of the Board, the President shall be the Chief Operating Officer
of the Corporation and shall have such functions, authority and duties as may
be prescribed by the Board of Directors or the Chairman of the Board. During
any period when there shall not be an office of Chairman of the Board, the
President shall be the Chief Executive Officer of the Corporation and, as
such, shall have the functions, authority and duties provided for the
Chairman of the Board when there is an office of Chairman of the Board.
Section 5. Vice President. The Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the
Board of Directors, the Chairman of the Board or the President.
Section 6. Secretary. The Secretary shall keep a record of all
proceedings of the stockholders of the Corporation and of the Board of
Directors, and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice, if any, of
all meetings of the stockholders and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board or the
President. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or in the absence of the Secretary any
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it, and when so affixed it may be attested by the signature of the
Secretary or an Assistant
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Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest such affixing of
the seal.
Section 7. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board
of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of
the Secretary's inability or refusal to act, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as may from
time to time be prescribed by the Board of Directors, the Chairman of the
Board, the President or the Secretary.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, the President
and the Board of Directors, at its regular meetings or when the Board of
Directors so requires, an account of all transactions as Treasurer and of the
financial condition of the Corporation. The Treasurer shall perform such
other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the President or the Chief Financial
Officer.
Section 9. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by
the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the
event of the Treasurer's inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the President or the Treasurer.
Section 10. Other Officers. Any officer who is elected or appointed
from time to time by the Board of Directors and whose duties are not
specified in these By-Laws shall perform such duties and have such powers as
may be prescribed from time to time by the Board of Directors, the Chairman
of the Board or the President.
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ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Certificates of stock
in the Corporation, if any, shall be signed by or in the name of the
Corporation by the Chairman of the Board or the President or a Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation. Where a certificate is countersigned
by a transfer agent, other than the Corporation or an employee of the
Corporation, or by a registrar, the signatures of the Chairman of the Board,
the President or a Vice President and the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary may be facsimiles. 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, the
certificate may be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were such officer, transfer agent or
registrar at the date of its issue.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate
of stock or uncertificated shares in place of any certificate therefore
issued by the Corporation to the person entitled thereto, cancel the old
certificate and record the transaction on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a
certificate for any stock of the Corporation, a new certificate of stock or
uncertificated shares in place of any certificate therefore issued by the
Corporation may be issued upon satisfactory proof of such loss, destruction
or theft and upon such terms as the Board of Directors may prescribe. The
Board of Directors may in its discretion require the owner of the lost,
destroyed or stolen certificate, or his legal representative, to give the
Corporation a bond, in such sum and in sum form and with such surety or
sureties as it may direct, to indemnify the Corporation against any claim
that may be made against it with respect to a certificate alleged to have
been lost, destroyed or stolen.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only
to the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
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Section 3. To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 1 and 2 of this
Article, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1
and 2 of this Article. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable and a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the manner provided in Section 4 of this Article upon receipt of
an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation under this Article.
Section 6. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (i) arising under the Employee Retirement Income Security
Act of 1974 or regulations promulgated thereunder, or under any other law or
regulation of the United States or any agency or instrumentality thereof or
law or regulation of any state or political subdivision or any agency or
instrumentality of either, or under the common law of any of the foregoing,
against expenses (including attorneys' fees), judgments, fines, penalties,
taxes and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding by reason of the fact that
he is or was a fiduciary, disqualified person or party in interest with
respect to an employee benefit plan covering employees of the Corporation or
of a subsidiary corporation, or is or was serving in any other capacity with
respect to such plan, or has or had any obligations or duties with respect to
such plan by reason of such laws or regulations, provided that any person was
or is a director, officer, employee or agent of the Corporation, or (ii) in
connection with any matter arising under federal, state or local revenue or
taxation laws or regulations, against expenses
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(including attorneys' fees), judgments, fines, penalties, taxes, amounts paid
in settlement and amounts paid as penalties or fines necessary to contest the
imposition of such penalties or fines, actually and reasonably incurred by
him in connection with such action, suit or proceeding by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise and had responsibility for or participated
in activities relating to compliance with such revenue or taxation laws and
regulations; provided, however, that such person did not act dishonestly or
in willful or reckless violation of the provisions of the law or regulation
under which such suit or proceeding arises. Unless the Board of Directors
determines that under the circumstances then existing, it is probable that
such director, officer, employee or agent will not be entitled to be
indemnified by the Corporation under this section, expenses incurred in
defending such suit or proceeding, including the amount of any penalties or
fines necessary to be paid to contest the imposition of such penalties or
fines, shall be paid by the Corporation in advance of the final disposition
of such suit or proceeding upon receipt of an undertaking by or on behalf of
the director, officer, employer or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation under this Section.
Section 7. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person.
Section 8. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is 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 liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not he would be entitled to indemnity against such
liability under the provisions of this Article.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
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Section 2. Corporate Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be
given under law or the provisions of the Certificate of Incorporation or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent to notice.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the Board of Directors. The fact that the power to amend, alter,
repeal or adopt the By-Laws has been conferred upon the Board of Directors
shall not divest the stockholders of the same powers.
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