Attached files
file | filename |
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S-1 - FORM S-1 - ENERGY CORP OF AMERICA | l39163sv1.htm |
EX-3.1 - EX-3.1 - ENERGY CORP OF AMERICA | l39163exv3w1.htm |
EX-3.2 - EX-3.2 - ENERGY CORP OF AMERICA | l39163exv3w2.htm |
EX-3.4 - EX-3.4 - ENERGY CORP OF AMERICA | l39163exv3w4.htm |
EX-3.3 - EX-3.3 - ENERGY CORP OF AMERICA | l39163exv3w3.htm |
EX-4.1 - EX-4.1 - ENERGY CORP OF AMERICA | l39163exv4w1.htm |
EX-21.1 - EX-21.1 - ENERGY CORP OF AMERICA | l39163exv21w1.htm |
EX-23.1 - EX-23.1 - ENERGY CORP OF AMERICA | l39163exv23w1.htm |
EX-10.1 - EX-10.1 - ENERGY CORP OF AMERICA | l39163exv10w1.htm |
EX-10.2 - EX-10.2 - ENERGY CORP OF AMERICA | l39163exv10w2.htm |
EX-23.4 - EX-23.4 - ENERGY CORP OF AMERICA | l39163exv23w4.htm |
Exhibit 3.5
ENERGY CORPORATION OF AMERICA
BY-LAWS
ARTICLE I
Offices
Section 1. The principal office of the corporation shall be located at 4643 South
Ulster Street, Suite 1100, Denver, Colorado, provided that the Board of Directors shall have power
to change the location of the principal office at its discretion.
Section 2. The corporation may also have offices and keep its books at such other
place or places within or outside of the State of West Virginia as the Board of Directors may, from
time to time, determine, or as the business of the corporation may require.
ARTICLE II
Shareholders and Shares of Stock
Section 1. Annual Meetings. The annual meeting of the shareholders shall be
held on the first Monday in December of each calendar year or on such other date in the month of
December as may be designated in the notice and call of such meeting, at the principal office of
the corporation, or at such other place either within or outside of the State of Colorado as the
Board of Directors shall, from time to time, determine, and the place and the hour at which such
meeting shall be held shall be stated in the notice and call of such meeting. At such meeting, the
Board of Directors shall be elected and such other business shall be transacted as is usual at the
annual meeting of a corporation. Such meeting may adjourn to a later date, and no notice of such
adjourned meeting shall be necessary. If such meeting be not held as herein prescribed, the
election of directors to succeed those whose terms expire may be held at any meeting thereafter
called pursuant to these By-Laws.
Section 2. Special Meeting. Special meetings of the shareholders may be held
at such places within or outside of the State of Colorado as may be designated in the notice and
call of such meeting, or if no place be specified, then at the principal office of the corporation;
provided, however, that when called by the Board of Directors any special meeting of the
shareholders may be held ether within or outside of the State of Colorado at such place as may be
designated in the notice and call of such meeting. Special meetings of the shareholders may be
called by the Board of Directors, the President, the Vice President, the Secretary or the
Treasurer, or any number of shareholders owning in the aggregate of at least one-tenth
(1/10th) of the number of shares outstanding. The notice of special meetings shall
state the business to be transacted, and no business other than that included in the notice or
incidental thereto shall be transacted at such meeting. Special meetings may adjourn to a later
date, and no notice of such adjourned meeting shall be necessary.
Section 3. Notice of Meetings. Notice of annual and special meetings shall be
given by mailing to each shareholder a written notice thereof specifying the time and place of such
meeting, and, in the case of special meetings, the business to be transacted, as hereinbefore set
forth, such notice to be mailed to the last address of the shareholders as they respectively appear
upon the books of the corporation, and in the case of annual meetings not less than ten (10) days,
and in the case of special meetings not less than five (5) days, before the date of such meeting
and the mailing of such notice shall be sufficient and no publication or further notice shall be
necessary. Such notice may be signed by the Secretary or an Assistant Secretary.
Section 4. Waiver of Notice. Notice of the time, place or purpose of any
meeting of shareholders, whether required by the provisions of the corporation laws of the State of
West Virginia, or by these By-Laws, shall be dispensed with if every shareholder shall attend such
meeting either in person or by proxy, or if every absent shareholder shall, in writing filed with
the records of the meeting either before or after the holding thereof, waive such notice.
Section 5. Action by Unanimous Consent. Whenever the vote of shareholders at a
meeting thereof is required or permitted to be taken in connection with any corporate action, the
meeting and vote of such shareholders may be dispensed with if all of the shareholders who would
have been entitled to vote upon the action if such meeting were held, shall agree in writing to
such corporate action being taken, and such agreement shall have like effect and validity as though
the action were duly taken by the unanimous action of all shareholders entitled to vote at a
meeting of such shareholders duly called and legally held.
Section 6. Quorum. A quorum of the shareholders shall consist of at least a
majority of all of the shares of stock entitled to vote. Any number less than a quorum present may
adjourn any shareholders meeting until a quorum is present, and no notice as to such adjourned
meeting shall be necessary.
Section 7. Voting Rights. In all elections of directors of the corporation,
each shareholder shall have the right to cast one vote for each share of stock owned by him and
entitled to a vote, and he may cast the same in person or by proxy for as many persons as there are
directors to be elected, or he may cumulate such votes and give one candidate as many votes as the
number of directors to be elected multiplied by the number of his shares of stock shall equal; or
he may distribute them on the same principle among as many candidates and in such manner as he
shall desire, and the directors shall not be elected in any other manner; and on any other question
to be determined by a vote of shares at an meeting of shareholders, each shareholder shall be
entitled to one vote for each share of stock owned by him and entitled to a vote, and he may
exercise this right in person or by proxy; provided, however, no voting rights shall attach to any
fractional part of a share of stock, and no person shall vote on any proxy after three (3) years
from the date thereof, unless the proxy specifically confers the right to vote for a longer period
and then only within the period specified.
Section 8. Organization of Shareholders Meeting. The President of the
corporation, or, in his absence, a Vice President, shall call the meetings of the shareholders to
order and shall act as Chairman of such meetings, and the Secretary or an Assistant Secretary of
the corporation shall act as Secretary of such meetings. In the absence of such officers, or any
one of them, the meeting shall designate the Chairman and/or Secretary, as the case may be.
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Section 9. Order of Business. No formal order of business need be followed in
any meeting, regular or special, of the shareholders.
Section 10. Certificates for Shares of Stock. Every holder of shares of stock
in this corporation, when the same shall be fully paid for, shall be entitled to have a certificate
signed by, or in the name of the corporation, the President and the Secretary or an Assistant
Secretary, of this corporation, certifying the number of shares owned by him in this corporation.
Section 11. Lost or Destroyed Stock Certificates. A certificate of stock may
be issued in lieu of a certificate lost or destroyed upon compliance with the following terms and
conditions by the person who appears by the books of the corporation to be the owner of a lost or
destroyed certificate; that is to say: (a) Such apparent owner shall file with the officers of the
corporation, first, an affidavit setting forth the time, place and circumstances of the loss to the
best of his knowledge and belief; second, proof of his having advertised the loss in a newspaper of
general circulation published near the principal office of the corporation once a week for two
weeks; and (b) he shall execute and deliver to the corporation a bond with good security, in a
penalty of at least the value of the shares of stock represented by a lost or destroyed
certificate, conditioned to indemnify the corporation and all persons whose rights may be affected
by the issuances of a new certificate against any loss in consequence of a new certificate being
issued; provided, however, that a new certificate may be issued in lieu of the one lost in the
discretion of the Board of Directors, without requiring the publication of the above notice or the
giving of a bond.
Section 12. Ownership of Capital Stock. The person in whose name shares of
stock stand on the books of the corporation shall be deemed the owner thereof so far as the
corporation is concerned. The personal representatives of a deceased stockholder shall be entitled
to vote the shares of stock of his decedent without having any such shares transferred to him. No
voting right shall be given to any stock while owned by the corporation nor shall any stock so held
be entitled to any dividend.
Section 13. Stock Transfer Books. Stock transfer books shall be kept by the
Secretary or a transfer agent designated by the corporation, in which the shares shall be
transferred under such regulations as may be prescribed by the Board of Directors.
Section 14. Restrictions on Transfer, Pledge or Sale of Stock. The rights to
subscribe for and to transfer, pledge or sell, shares of stock of this corporation may be made
subject to such conditions and restrictions as are provided for in any written agreement among and
between the stockholders and this corporation that may be authorized and approved by the Board of
Directors.
Section 15. Closing of Stock Books. The Board of Directors is authorized to
fix the time, not exceeding forty (40) days preceding the date of any meeting of the shareholders
or any dividend payment date, or any date for the allotment of rights, during which the books of
the corporation shall be closed against the transfer of stock, or in lieu of providing for the
closing of the books against transfer of stock, the Board of Directors is authorized to fix a date,
not exceeding forty (40) days preceding the date of any meeting of the shareholders or any dividend
payment date, or any date for allotment of rights, as a record date for the determination of the
shareholders entitled to notice of, or to vote at, such meeting and/or entitled to receive such
dividend payment or rights, as the case may be, and only shareholders of record on such date shall
be entitled to notice of and/or to vote at such meeting or to receive such dividend payments or
rights.
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ARTICLE III
Directors
Section 1. Board of Directors. The business and affairs of the corporation
shall be managed by a Board of Directors. Directors need not be residents of the State of West
Virginia or shareholders in the corporation.
Section 2. Election of Directors. The initial number of directors shall be at
least three (3) but not more than nine (9), provided that the number may be increased or decreased
from time to time by an amendment to these By-Laws, but no decrease shall have the effect of
shortening the term of any incumbent director. The directors shall be elected at each annual
meeting of the shareholders, or any adjournment thereof, to serve until the next annual meeting of
the shareholders or until their offices shall be declared vacant, or until their successors are
elected and qualified.
Section 3. Vacancies. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of the remaining directors, though less than a quorum of the Board.
Any directorship to be filled by reason of an increase in the number of directors shall be filled
by election at an annual meeting or at a special meeting of shareholders called for that purpose.
A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in
office.
Section 4. Quorum of Directors. A majority of the Board of Directors shall
constitute a quorum for the transaction of business. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 5. Annual Meeting of Directors. Within thirty (30) days after each
annual meeting of shareholders, the Board of Directors elected at such meeting shall hold an annual
meeting at which they shall elect officers and transact such other business as may come before the
meeting.
Section 6. Regular Meetings of Directors. A regular meeting of the Board of
Directors may be held at such time as shall be determined from time to time by resolution of the
Board of Directors.
Section 7. Special Meetings of Directors. The Secretary shall call a special
meeting of the Board of Directors whenever requested to do so by the President or by two (2)
directors. Such special meeting shall be held at the time specific in the notice of meeting.
Section 8. Place of Directors Meeting. All meetings of the Board of Directors
(annual, regular or special) shall be held either at the principal office of the corporation or at
such other place, either within or outside of the State of Colorado, as shall be specified in the
notice of meeting.
Section 9. Notice of Directors Meetings. All meetings of the Board of
Directors (annual, regular or special) shall be held upon not less than three (3) days written
notice stating the date, place and hour of meeting delivered to each director either personally or
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by mail at the direction of the President or the Secretary or the officer or person calling the
meeting.
Section 10. Waiver of Notice. Notice of the time, place or purpose of any meeting of
directors, whether required by the provisions of the corporation laws of the State of West Virginia
or by these By-Laws, shall be dispensed with if every director shall attend such meeting in person,
or if every absent director shall, in writing filed with the records of the meeting either before
or after the holding thereof, waive such notice.
Section 11. Action by Unanimous Consent. Whenever the vote of directors at a
meeting thereof is required or permitted to be taken in connection with any corporate action, the
meeting and vote of such directors may be dispensed with if all the directors shall agree in
writing to such corporate action being taken, and such agreement shall have like effect and
validity as though the action were duly taken by the unanimous action of all directors at a meeting
of such directors duly called and legally held.
Section 12. Specification of Purpose of Meeting Not Required. Neither the
business to be transacted at, nor the purpose of, any annual, regular or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section 13. Order of Business. No formal order of business need be followed in
any meeting of the directors, either regular or special.
Section 14. Committees. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation, which, to the extent
provided in such resolution or resolutions, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the corporation, and may have power to
authorize the seal of the corporation to be affixed to all papers which may require it. 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.
Section 15. Election of Officers. The directors shall elect the President,
Vice President, the Secretary and Treasurer of the corporation, and may elect all other officers
and agents, or, as to the latter, may delegate their election to an officer and/or officers of the
corporation. In addition to the foregoing officers, the Board of Directors may designate such
other officers or officials as from time to time may be deemed advisable, and may prescribe their
duties. The directors shall have the power to fix the salaries of all officers, agents and
employees of the corporation, but in the absence of action by the directors, such power shall be
vested in the President, except as to his own salary and that of any Vice President.
Section 16. Compensation. Directors, as such, shall not receive any stated
salary for their services, but by resolution of the Board of Directors, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each annual, regular or special meeting of the
Board, provided that nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
Officers and Agents
Section 1. Officers. Officers of the corporation shall be a President, Vice
President, Secretary and Treasurer, all of whom shall be chosen by the Board of Directors. None of
the officers of the corporation need to be a shareholder or director of the corporation. Any two
of the above-named officers, except those of the President and Secretary, may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in more than one
capacity, if such instrument is required by law or by these By-Laws to be executed, acknowledged,
verified or countersigned by any two or more officers. The foregoing officers shall hold office
until the next annual meeting of the Board of Directors of Directors, held after the annual meeting
of the shareholders, and until their successors are elected and qualified. Any duty to be
performed by an officer of the corporation may be performed by his duly authorized assistant
officer.
Section 2. Removal of Officers. Any and all officers of the corporation may be
removed at any time and their successors elected by a majority vote of the Board of Directors at
any regular or special meeting of the directors.
Section 3. Agents and Employees. All agents and employees of the corporation
may be appointed and their salaries fixed by the Board of Directors, by the President, and except
as to any Vice President, the Secretary and Assistant Secretary, the Treasurer and Assistant
Treasurer, they shall hold office during the will and pleasure of the President, subject to action
by the Board of Directors, and may be removed at any time by the President, subject to action by
the Board of Directors. If such agents and employees are appointed by the directors, they (except
the above-specified officers) may nevertheless be removed by the President, unless he be expressly
forbidden so to do by the directors.
Section 4. Powers and Duties of the President. The President shall preside at
all meetings of the shareholders and the Board of Directors. Subject to the control of the Board
of Directors, he shall have general charge of the business of the corporation; he shall keep the
Board of Directors fully informed of the business of the corporation; he may sign and execute all
authorized bonds, contracts or other obligations in the name of, and on behalf of the corporation;
and, with the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, he
shall sign all certificates of stock; and, without further authorization than these present, he may
sign all checks and/or drafts upon funds of the corporation in its name and on its behalf, and any
bank or depository in which funds of the corporation shall be deposited shall be fully and
conclusively protected in honoring any checks and/or drafts on behalf of the corporation signed by
the President. Subject to the action of the Board of Directors, he shall the power to fix the
salaries of all officers, agents, and employees of the corporation, except the President and any
Vice President, and shall have the power to employ and discharge all agents and employees of the
corporation, subject to the control of the Board of Directors, except the Vice Presidents, the
Secretary and Assistant Secretary, the Treasurer and Assistant Treasurer. He shall generally
conduct the affairs of the corporation and shall do and perform such other duties as from time to
time may be assigned to him by the Board of Directors.
Section 5. Vice President. The Vice President shall perform all of the duties
and be vested with all of the authority of the President in case of a vacancy in the office of
President or in the absence or disqualification of the President and shall have such other
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powers and shall perform such other duties as may be assigned to him by the Board of Directors. If
there be more than one Vice President, the Board of Directors may designate one of them as a Senior
Vice President and he shall perform all the duties and be vested with all the authority set forth
in the preceding sentence; and the other Vice President or Vice Presidents shall have such other
powers and shall perform such other duties as may be assigned to him or them by the Board of
Directors.
Section 6. Secretary. The Secretary shall keep the minutes of all meetings of
the Board of Directors and the shareholders. The Secretary shall likewise attend to the giving and
serving of all notices of meetings, shall affix the seal of the corporation to all certificates of
stock and all authorized contracts and obligations of the corporation, shall attest to the same,
shall keep the transfer books and ledgers of the corporation which books shall be at all reasonable
times, open for examination to any director, shall perform in general all of the duties incident to
the office of the Secretary, and shall have such other powers and duties as shall be from time to
time conferred upon him by the Board of Directors.
Section 7. Assistant Secretary. The Board of Directors may designate and
choose an Assistant Secretary, who shall have the usual powers and duties pertaining to his office
together with such other powers and duties as may be assigned to him by the Board of Directors. In
case of the absence or disability of the Secretary, the duties of the Secretary shall be performed
by the Assistant Secretary.
Section 8. Treasurer. The Treasurer shall have the custody of all the funds
and securities of the corporation and shall have the power to sign checks and drafts of the
corporation, and any depository in which the funds of the corporation are deposited shall be
conclusively protected in honoring and acting upon any check or draft signed by the Treasurer. The
Treasurer shall keep full and accurate account of all moneys received and paid on account of the
corporation which shall truly reflect all the financial transactions and conditions of the
corporation, shall conform to the requirements hereof, and he shall generally perform all acts
incident to the position of Treasurer, and shall have such further powers and duties as shall be
from time to time conferred upon him by the Board of Directors.
Section 9. Assistant Treasurer. The Board of Directors may designate and
choose an Assistant Treasurer, who shall have the usual powers and duties pertaining to his office
together with such other powers and duties as may be assigned to him by the Board of Directors. In
case of the absence or disability of the Treasurer, the duties of the Treasurer shall be performed
by the Assistant Treasurer.
ARTICLE V
Indemnification
Section 1. Indemnification. Every person (and the heirs, executors and
administrators of such person) who is or was a director, officer or employee of the corporation, or
of any other company which he served as such at the request of the corporation and of which the
corporation directly or indirectly is a stockholder or creditor, or in which, or in the stocks,
bonds, securities or other obligations of which it is any way, interested, shall be entitled to
indemnification as a right by the corporation against any and all liability and reasonable expense
that may be incurred by him in connection with or resulting from any claim, action, suit or
proceeding (whether brought by or in the right of the corporation or such other company or
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otherwise), civil or criminal, or in connection with an appeal relating thereto, in which he may
become involved, as a party or otherwise, by reason of his being or having been a director, officer
or employee of the corporation or such other company, or by reason of any action taken or not taken
in his capacity as such director, officer or employee, whether or not he continues to be such at
the time such liability or expense shall have been incurred, except in such cases wherein the
director, officer or employee is adjudged liable for negligence or misconduct in the performance of
duty to the corporation or such other company, and except, in addition, in any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful; and in such excepted
cases, criminal actions or proceedings, indemnification may be made at the discretion of the
corporation. As used in this paragraph, the terms liability and expense shall include, but
shall not be limited to, counsel fees and disbursements and amounts of judgments, fines or
penalties against, and amounts paid in settlement by, a director, officer or employee. The
termination of any claim, action, suit or proceeding, civil or criminal, by judgment, settlement
(whether with or without court approval) or conviction or upon a plea of guilty or of nolo
contendere, or its equivalent, shall not create a presumption that a director, officer or employee
did not meet the standards of conduct set forth in this paragraph. Expenses incurred with respect
to any claim, action, suit or proceeding of the character described in this paragraph may be
advanced by the corporation prior to the final disposition thereof upon receipt of an undertaking
by or on behalf of the recipient to repay such amount unless it shall ultimately be determined that
he is entitled to indemnification under this paragraph. The rights of indemnification provided in
this paragraph shall be in addition to any rights to which any such director, officer or employee
or other person may otherwise be entitled under any by-law, agreement, vote of stockholders, or
otherwise.
ARTICLE VI
Corporate Records
Section 1. Corporate Records. The directors and officers of the corporation
shall keep accurate account of all corporate transactions. The books and records of the
corporation shall at all times be subject to examination by any director or by any committee
appointed for the purpose at a meeting of the shareholders, or by the holders of at least five
percent (5%) of the stock outstanding not in a meeting. The minutes and resolutions of the Board
of Directors shall at all times be open to examination by any member of the Board or by any
committee appointed by the shareholders, and such minutes shall be produced whenever required by
the shareholders at any meeting. The books of the corporation shall be so kept as to show at all
times what money or other consideration was received by the corporation for the stock issued by it
and the number of shares issued.
ARTICLE VII
Dividends and Finance
Section 1. Dividends. The Board of Directors may from time to time declare and
pay dividends of so much of the net profits of the corporation as they deem it prudent to divide,
payable in cash or other property of the corporation, against its accumulated earnings or surplus,
whenever such declaration of dividends will not impair the capital of the corporation.
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Section 2. Depository of Funds. The moneys of the corporation shall be
deposited in the name of the corporation in such bank, banks, trust company or trust companies as
the Board of Directors shall designate and shall be drawn out only by check, signed by persons
designated by resolution of the Board of Directors.
Section 3. Fiscal Year. The fiscal year of the corporation shall begin on the
first day of July in each year, unless otherwise provided by the Board of Directors.
ARTICLE VIII
Corporate Seal
Section 1. Corporate Seal. The corporate seal of this corporation shall be
circular in form and shall have inscribed thereon the name of this corporation and the words
Corporate Seal in the center, and the Board of Directors for this purpose hereby adopts the seal,
the impression of which is made on the margin hereof.
ARTICLE IX
Amendment to By-Laws
Section 1. Amendment to By-Laws. These By-Laws may be altered, amended or
repealed in whole or in part at any meeting of the Board of Directors by the affirmative vote of a
majority of the directors present at the meeting, a quorum being present, subject to repeal or
change by the affirmative vote of the holders of a majority of the issued and outstanding shares
then entitled to vote, at any meeting of the shareholders.
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