Attached files
| file | filename |
|---|---|
| 8-K - TXCO Resources Inc | v174664_8k.htm |
| EX-10.2 - TXCO Resources Inc | v174664_ex10-2.htm |
| EX-3.1 - TXCO Resources Inc | v174664_ex3-1.htm |
| EX-99.2 - TXCO Resources Inc | v174664_ex99-2.htm |
SECOND
AMENDED
AND RESTATED BYLAWS
OF
REORGANIZED
TXCO, INC.
(the
“Corporation”)
ARTICLE
I.
OFFICES
Section
1. Registered Office.
The registered office of the Corporation shall be in c/o Corporation Service
Company, 2711 Centerville Road, Wilmington, Delaware 19808.
Section
2. Other Offices. The
Corporation may also have offices at such other places, both within and without
the State of Delaware, as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE
II.
MEETINGS OF
STOCKHOLDERS
Section
1. Place of Meetings.
Meetings of stockholders for all purposes may be held at such time and place,
either within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section
2. Annual Meeting. An
annual meeting of stockholders of the Corporation shall be held each calendar
year on such date and at such 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 of notice of such meeting. At such meeting, the stockholders
shall elect directors and transact such other business as may properly be
brought before the meeting.
Section
3. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, the Certificate of Incorporation or these
Bylaws, may be called by the President or the Board of
Directors. Business transacted at all special meetings shall be
confined to the purposes stated in the notice of the meeting.
Section
4. Notice. Written or
printed notice stating the place, date, and hour of each meeting of the
stockholders and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting, either personally or by mail, by
or at the direction of the officer or person(s) calling the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is to be
sent by mail, it shall be directed to such stockholder at his address as it
appears on the records of the Corporation, unless he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed to
some other address, in which case it shall be directed to him at such other
address. Notice of any meeting of stockholders shall not be required to be given
to any stockholder who shall attend such meeting in person or by proxy and shall
not, at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
Section
5. Voting List. At least
ten (10) days before each meeting of stockholders, the Secretary or other
officer of the Corporation who has charge of the Corporation’s stock ledger,
either directly or through another officer appointed by him or through a
transfer agent appointed by the Board of Directors, shall prepare 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 to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) 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 a duly executed
waiver of notice of such meeting or, if not so specified, at the place where the
meeting is to be held. Such list shall also be produced and kept at the time and
place of the meeting at all times during such meeting and may be inspected by
any stockholder who is present.
Section
6. Quorum. The
holders of a majority of the outstanding shares entitled to vote on a matter,
present in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders, except as otherwise provided by statute, the
Certificate of Incorporation or these Bylaws. If a quorum shall not
be present at any meeting of stockholders, the stockholders entitled to vote
thereat who are present, in person or by proxy, or, if no stockholder entitled
to vote is present, any officer of the Corporation, may adjourn the meeting from
time to time until a quorum shall be present. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at the meeting at which the adjournment is taken.
At any adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the original meeting had a quorum
been present; provided that, 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 the adjourned meeting.
Section
7. Required Vote; Withdrawal Of
Quorum. When a quorum is present at any meeting, the vote of the holders
of at least a majority of the outstanding shares entitled to vote who are
present, in person or by proxy, shall decide any question brought before the
meeting, unless the question is one on which, by express provision of statute,
the Certificate of Incorporation or these Bylaws, a different vote is required,
in which case such express provision shall govern and control the decision of
the question. The stockholders present at a duly constituted meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
-2-
Section
8. Method of Voting:
Proxies. (a) Each outstanding share shall be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders, except to
the extent that the voting rights of the shares of any class or classes are
limited, denied, increased or decreased by the Certificate of
Incorporation.
(b) Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. Each proxy shall be filed with the Secretary of the Corporation prior to
or at the time of the meeting.
(c) Without limiting
the manner in which a stockholder may authorize another person or persons to act
for him as proxy pursuant to subsection (b) of this section, the following shall
constitute a valid means by which a stockholder may grant such
authority:
(i) A
stockholder may execute a writing authorizing another person or persons to act
for him as proxy. Execution may be accomplished by the stockholder or by an
authorized officer, director, employee or agent of the stockholder signing such
writing or causing such stockholder’s signature to be affixed to such writing by
any reasonable means including, but not limited to, by facsimile
signature.
(ii) A
stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(d) Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection (c) of this section may be
substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or
transmission.
(e) 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.
-3-
Section
9. Record
Date. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, 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 record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, 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. 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.
(b) In
order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders 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,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 10. Inspectors of
Elections. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if inspectors
shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies and shall receive votes or ballots, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes or ballots, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by
them. No director or candidate for the office of director shall act
as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE
III.
DIRECTORS
Section
1. Management. The
business and affairs of the Corporation shall be managed by its Board of
Directors who may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute, the Certificate of Incorporation
or these Bylaws directed or required to be exercised or done by the
stockholders. The Board of Directors shall keep regular minutes of its
proceedings.
-4-
Section
2. Number;
Election. The Board of Directors shall consist of no less than
one (1) nor more than ten (10) directors, who need not be stockholders or
residents of the State of Delaware. The directors shall be elected at
the annual meeting of the stockholders, except as hereinafter
provided.
Section
3. Change in
Number. The number of directors may be increased or decreased
from time to time by resolution adopted by the affirmative vote of a majority of
the Board of Directors, but no decrease shall have the effect of shortening the
term of any incumbent director.
Section
4. Removal;
Vacancies. Any director may be removed, with or without cause,
at any annual or special meeting of stockholders, by the affirmative vote of the
holders of a majority of the shares represented in person or by proxy at such
meeting and entitled to vote for the election of such director, if notice of the
intention to act upon such matters shall have been given in the notice calling
such meeting.
Section
6. Vacancies and Newly Created
Directorships. Unless the Board of Directors otherwise
determines, vacancies and newly-created directorships resulting from any
increase in the authorized number of directors shall be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director (and not by the stockholders) unless otherwise required by
law or by resolution of the Board of Directors. Each director so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he has been
elected expires and until his successor is elected and qualified or until his
earlier resignation or removal. If at any time there are no directors in office,
an election of directors may be held in the manner provided by statute. Except
as otherwise provided in these Bylaws, when one or more directors shall resign
from the Board of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have the
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director so
chosen shall hold office as provided in these Bylaws with respect to the filling
of other vacancies.
Section
7. Election of Directors;
Cumulative Voting Prohibited. At every election of directors,
each stockholder shall have the right to vote in person or by proxy the number
of voting shares owned by him for as many persons as there are directors to be
elected and for whose election he has a right to vote. Cumulative
voting shall be prohibited.
Section
8. Place of
Meetings. The directors of the Corporation may hold their
meetings, both regular and special, either within or without the State of
Delaware.
Section
9. First
Meetings. The first meeting of each newly elected Board of
Directors shall be held without further notice immediately following the annual
meeting of stockholders, and at the same place, unless by unanimous consent of
the directors then elected and serving, such time or place shall be
changed.
Section 10.
Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
-5-
Section
11. Special
Meetings. Special meetings of the Board of Directors may be
called by the President on three (3) days’ notice to each director, either
personally or by mail or by telegram. Special meetings may be called
in like manner and on like notice on the written request of any one of the
directors. Except as may be otherwise expressly provided by statute, the
Certificate of Incorporation or these Bylaws, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice.
Section
12. Quorum. At
all meetings of the Board of Directors, the presence of a majority of the
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the vote of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute, or the
Certificate of Incorporation or these Bylaws. If a quorum shall not be present
at any meeting 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
13. Action Without Meeting;
Telephone Meetings. Any action required or permitted to be
taken at a meeting of the Board of Directors thereof may be taken without a
meeting if a consent, in writing, setting forth the action so taken, is signed
by all the members of the Board of Directors. Such consent shall have
the same force and effect as a unanimous vote at a meeting. Subject
to applicable notice provisions and unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, may participate
in and hold a meeting 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, except where a person’s participation is for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section
14. Chairman of the
Board. The Board of Directors may elect a Chairman of the
Board to preside at their meetings and to perform such other duties as the Board
of Directors may from time to time assign to him.
Section
15. Compensation. Directors,
as such, shall, by resolution of the Board of Directors, receive for their
services annual retainers, and a fixed sum and expenses of attendance, if any,
may be allowed for attendance at each regular or special meeting of the Board of
Directors; provided, that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE
IV.
COMMITTEES
Section
1. Designation. The
Board of Directors may, by resolution passed by a majority of the entire Board
of Directors, designate one or more committees.
Section
2. Number; Qualification;
Term. Each committee shall consist of one or more directors
appointed by resolution adopted by a majority of the entire Board of Directors.
The number of committee members may be increased or decreased from time to time
by resolution adopted by a majority of the entire Board of Directors. Each
committee member shall serve as such until the earliest of (i) the expiration of
his term as director, (ii) his resignation as a committee member or as a
director, or (iii) his removal as a committee member or as a
director.
-6-
Section
3. Authority. Each
committee, to the extent expressly provided in the resolution of the Board of
Directors establishing such committee, shall have and may exercise all of the
authority of the Board of Directors in the management of the business and
affairs of the Corporation except to the extent expressly restricted by statute,
the Certificate of Incorporation or these Bylaws.
Section
4. Committee Changes;
Removal. The Board of Directors shall have the power at any
time to fill vacancies in, to change the membership of and to discharge any
committee. The Board of Directors may remove any committee member, at any time,
with or without cause.
Section
5. Alternate Members of
Committees. The Board of Directors may designate one or more
directors as alternate members of any committee. Any such alternate member may
replace any absent or disqualified member at any meeting of the
committee.
Section
6. Regular
Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
Section
7. Special
Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two (2) days before such special meeting. Neither the
business to be transacted at, nor the purpose of any special meeting of any
committee need be specified in the notice or waiver of notice of any special
meeting.
Section
8. Quorum; Majority
Vote. At meetings of any committee, a majority of the number
of members designated by the Board of Directors shall constitute a quorum for
the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at
any meeting at which a quorum is in attendance shall be the act of a committee,
unless the act of a greater number is required by law, the Certificate of
Incorporation or these Bylaws.
Section
9. Minutes. Each
committee shall cause minutes of its proceedings to be prepared and shall report
the same to the Board of Directors upon the request of the Board of
Directors. The minutes of the proceedings of each committee shall be
delivered to the Secretary of the Corporation for placement in the minute books
of the Corporation.
Section
10. Compensation. Committee
members may, by resolution of the Board of Directors, receive for their services
as committee members annual retainers, and a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
committee meeting.
-7-
Section
11. Responsibility. The
designation of any committee and the delegation of authority to it shall not
operate to relieve the Board of Directors or any director of any responsibility
imposed upon it or such director by law.
ARTICLE
V.
NOTICES
Section
1. Method. Whenever
by statute, the Certificate of Incorporation, or these Bylaws, notice is
required to be given to any committee member, director, or stockholder and no
provision is made as to how such notice shall be given, personal notice shall
not be required, and any such notice may be given (a) in writing, by mail,
postage prepaid, addressed to such committee member, director, or stockholder at
his address as it appears on the books or (in the case of a stockholder) the
stock transfer records of the Corporation, or (b) by any other method permitted
by law (including but not limited to overnight courier service, telegram, telex,
telefax or electronically). Any notice required or permitted to be given by mail
shall be deemed to be given when deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be given at the time delivered to such service with
all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, telefax or electronically shall be
deemed to be delivered and given at the time transmitted with all charges
prepaid and addressed as aforesaid.
Section
2. Waiver. Whenever
any notice is required to be given to any stockholder or director or committee
member of the Corporation by statute, the Certificate of Incorporation or these
Bylaws, a written waiver thereof, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
equivalent to notice. Attendance of a stockholder or director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends 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
3. Exception to Notice
Requirement. The giving of any notice required under any
provision of the General Corporation Law of Delaware, the Certificate of
Incorporation or these Bylaws shall not be required to be given to any
stockholder to whom (i) notice of two (2) consecutive annual meetings, and all
notices of meetings to such stockholder during the period between such two (2)
consecutive annual meetings, or (ii) all, and at least two (2), payments (if
sent by first class mail) of dividends or interest on securities during a twelve
(12) month period, have been mailed addressed to such person at his address as
shown on the records of the Corporation and have been returned undeliverable. If
any such stockholder shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be given to such
stockholder shall be reinstated.
-8-
ARTICLE
VI.
OFFICERS
Section
1. Officers. The
officers of the Corporation shall be elected by the Board of Directors and shall
be President and a Secretary. The Board of Directors may also choose
a Chairman of the Board, one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers. Any
two (2) or more offices may be held by the same person.
Section
2. Election. The
Board of Directors at its first meeting after each annual meeting of
stockholders shall elect the officers of the Corporation, none of whom need be a
member of the Board, a stockholder or a resident of the State of Delaware. The
Board of Directors may appoint such other officers and agents as it shall deem
necessary, who shall be appointed for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the Board of
Directors.
Section
3. Compensation. The
compensation of all officers and agents of the Corporation shall be fixed by the
Board of Directors.
Section
4. Removal and
Vacancies. Each officer of the Corporation shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal. Any officer or agent elected or appointed by the Board of Directors may
be removed either for or without cause by a majority of the directors
represented at a meeting of the Board of Directors at which a quorum is
represented, whenever in the judgment of the Board of Directors 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. If the office of any officer becomes vacant for any reason,
the vacancy may be filled by the Board of Directors.
Section
4. President. The
President of the Corporation shall have general and active management of the
business and affairs of the Corporation, shall see that all orders and
resolutions of the Board of Directors are carried into effect, and shall perform
such other duties as the Board of Directors or the Chief Executive Officer shall
prescribe.
Section
5. Vice
Presidents. Each Vice President shall have only such powers
and perform only such duties as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer or President may from time to time
delegate to him.
Section
6. Secretary. The
Secretary shall attend all sessions of the Board of Directors and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose and shall perform like duties for any committee
when required. Except as otherwise provided herein, the Secretary
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. The Secretary shall
keep in safe custody the seal of the Corporation and, when authorized by the
Board of Directors, affix the same to any instrument requiring it, and, when so
affixed, it shall be attested by the Secretary signature or by the signature of
the Treasurer or an Assistant Secretary.
-9-
Section
7. Assistant
Secretaries. Each Assistant Secretary shall have only such
powers and perform only such duties as the Board of Directors may from time to
time prescribe or as the Chief Executive Officer or President may from time to
time delegate.
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 of the Corporation
and shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer, President and directors, at the
regular meetings of the Board of Directors, or whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation, and shall perform such other duties as the Board of Directors
may prescribe. If required by the Board of Directors, he shall give the
Corporation a bond in such form, in such sum, and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section
9. Assistant
Treasurers. Each Assistant Treasurer shall have only such
powers and perform only such duties as the Board of Directors may from time to
time prescribe.
Section
10. Controller. The
Controller shall be the principal accounting officer of the
Corporation.
ARTICLE
VII.
CERTIFICATES REPRESENTING
SHARES
Section
1. Certificates. The
shares of the Corporation shall be represented by certificates in such form as
shall be determined by the Board of Directors or, where allowed or required by
applicable law, shall be electronically issued without a
certificate. A resolution approved by the Board of Directors may
provide that some or all of any or all classes and series of the shares of the
Corporation will be uncertificated shares. Certificates shall be
consecutively numbered and shall be entered in the books of the Corporation as
they are issued. Each certificate shall state on the face thereof the
holder’s name, the number and class of shares, and the par value of such shares
or a statement that such shares are without par value. Each
certificate shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary and may be sealed with the seal of the
Corporation or a facsimile thereof. Any or all of the signatures on a
certificate may be facsimile.
Section
2. Legends. The
Board of Directors shall have the power and authority to provide that
certificates representing shares of stock shall bear such legends, including,
without limitation, such legends as the Board of Directors deems appropriate to
assure that the Corporation does not become liable for violations of federal or
state securities laws or other applicable law.
-10-
Section
3. Lost
Certificates. The Corporation may issue a new
certificate representing shares in place of any certificate theretofore issued
by the Corporation, alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate to be
lost, stolen or destroyed. The Board of Directors, in its discretion and as a
condition precedent to the issuance thereof, may require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the Corporation a bond in
such form, in such sum, and with such surety or sureties as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or
destroyed.
Section
4. Transfer of
Shares. Certificated or uncertificated shares of stock shall
be transferable only on the books of the Corporation by the holder thereof or by
his duly authorized attorney. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or the transfer agent of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section
5. Registered
Stockholders. The Corporation shall be entitled to treat the
holder of record of any certificated or uncertificated share or shares of stock
as the holder in fact thereof, and, accordingly, shall not be bound to recognize
any equitable or other claim or interest in such certificated or uncertificated
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
ARTICLE
VIII.
GENERAL
PROVISIONS
Section
1. Dividends. The
directors, subject to any restrictions contained in the Certificate of
Incorporation, may declare dividends upon the shares of the Corporation’s
capital stock. Dividends may be paid in cash, in property, or in shares of the
Corporation, subject to the provisions of the General Corporation Law of
Delaware and the Certificate of Incorporation.
Section
2. Reserves. By
resolution of the Board of Directors, the directors may set apart out of any of
the funds of the Corporation such reserve or reserves as the directors from time
to time, in their discretion, think proper to provide for contingencies, or to
equalize dividends, or to repair or maintain any property of the Corporation, or
for such other purposes as the directors shall think beneficial to the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section
3. Checks. All
checks or demands for money and notes of the Corporation shall be signed by such
officer or officers or such other person or persons as the Board of Directors
may from time to time designate.
Section
4. Fiscal
Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
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Section
5. Seal. The
corporate seal shall have inscribed thereon the name of the Corporation. Said
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section
6. Indemnification. The
Corporation shall indemnify its directors, officers and all other persons
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, in each case to the fullest extent required by the General
Corporation Law of Delaware and the Certificate of Incorporation. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors or officers.
Section
7. Transactions with Directors
and Officers. No contract or other transaction between the
Corporation and any other corporation and no other act of the Corporation shall,
in the absence of fraud, be invalidated or in any way affected by the fact that
any of the directors of the Corporation are pecuniarily or otherwise interested
in such contract, transaction or other act, or are directors or officers of such
other corporation. Any director of the Corporation, individually, or
any firm or corporation of which any such director may be a member, may be a
party to, or may be pecuniarily or otherwise interested in, any contract or
transaction of the Corporation; provided, however, that the fact that the
director, individually, or the firm or corporation is so interested shall be
disclosed or shall have been known to the Board of Directors or a majority of
such members thereof as shall be present at any annual meeting or at any special
meeting, called for that purpose, of the Board of Directors at which action upon
any contract or transaction shall be taken. Any director of the Corporation who
is so interested may be counted in determining the existence of a quorum at any
such annual or special meeting of the Board of Directors which authorizes such
contract or transaction, and may vote thereat to authorize such contract or
transaction with like force and effect as if he were not such director or
officer of such other corporation or not so interested. Every
director of the Corporation is hereby relieved from any disability which might
otherwise prevent him from carrying out transactions with or contracting with
the Corporation for the benefit of himself or any firm, corporation, trust or
organization in which or with which he may be in anywise interested or
connected.
Section
8. Amendments. These
Bylaws may be altered, amended, or repealed or new bylaws may be adopted by all
of the stockholders or by the Board of Directors at any regular or special
meeting of the stockholders or Directors, at any regular or special meeting of
the Board of Directors, or by written consent of all Board of Directors without
a meeting of the Board of Directors.
Section
9. Table of Contents;
Headings. The Table of Contents and headings used in these
Bylaws have been inserted for convenience only and do not constitute matters to
be construed in interpretation.
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CERTIFICATE BY
SECRETARY
The undersigned, being the secretary of
the Corporation, hereby certifies that the foregoing Second Amended and Restated
Bylaws were duly adopted by the Board of Directors of the Corporation effective
February 11, 2010.
IN WITNESS WHEREOF, I hereby certify
that the above and foregoing are the Bylaws of the Corporation, as amended, as
of the 11th day of February, 2010.
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/s/ Albert S. Conly
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Albert
S. Conly,
Secretary
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