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8-K - FORM 8-K - TOREADOR RESOURCES CORP | y03435e8vk.htm |
Exhibit 3.1
FOURTH AMENDED AND RESTATED
BYLAWS
OF
TOREADOR RESOURCES CORPORATION
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law of the State of
Delaware (the Delaware Corporation Law) and the certificate of incorporation (as amended and/or
restated, the Certificate of Incorporation) of Toreador Resources Corporation, a Delaware
corporation (the Corporation). In the event of a direct conflict between the provisions of these
bylaws and the mandatory provisions of the Delaware Corporation Law or the provisions of the
Certificate of Incorporation, such provisions of the Delaware Corporation Law or the Certificate of
Incorporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered agent of the
Corporation shall be as designated from time to time by the appropriate filing by the Corporation
in the office of the Secretary of State of the State of Delaware.
1.2 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 as the business of the Corporation may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders, commencing with the year
following the adoption of these bylaws, shall be held on the third Thursday during the month of
May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at
10:00 oclock A.M., or at such other date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which time the stockholders shall
elect a Board of Directors, and transact such other business as may properly be brought before the
meeting.
2.2 Special Meeting. A special meeting of the stockholders may be called by the Board
of Directors, by the Chairman of the Board, the Chief Executive Officer, the President, or by any
holder or holders of record of at least 25% of the outstanding shares of capital stock of the
Corporation then entitled to vote on any matter for which the respective special meeting is being
called. A special meeting shall be held on such date and at such time as shall be designated by the
person(s) calling the meeting and stated in the notice of the meeting or in a duly executed waiver
of notice of such meeting. Only such business shall be transacted at a special meeting as may be
stated or indicated in the notice of such meeting given in accordance with these bylaws or in a
duly executed waiver of notice of such meeting. The Board of Directors, the Chief Executive Officer
or the President may postpone or reschedule any previously scheduled special meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at any place
within or without the State of Delaware designated by the Board of Directors. A special meeting of
stockholders may be held at any place within or without the State of Delaware designated in the
notice of the meeting or a duly executed waiver of notice of such meeting. Meetings of stockholders
shall be held at the principal office of the Corporation unless another place is designated for
meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time of each meeting
of the stockholders and, in case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than 10 nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the Chairman of the Board, the
Secretary, or 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.
2.5 Notice of Stockholder Business; Nomination of Director Candidates.
(a) At annual meetings of the stockholders, only such business shall be conducted as
shall have been brought before the meetings (i) pursuant to the Corporations notice of
meeting, (ii) by or at the direction of the Board of Directors, or (iii) by any stockholder
of the Corporation who is a stockholder of record at the time of giving of notice provided
for in this Section 2.5, who shall be entitled to vote at such meeting, and who complies
with the notice procedures set forth in this Section 2.5.
(b) Only persons who are nominated in accordance with the procedures set forth in these
bylaws shall be eligible to serve as directors. Nominations of persons for election to the
Board of Directors may be made at a meeting of stockholders (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 2.5, who shall be
entitled to vote for the election of directors at the meeting, and who complies with the
notice procedures set forth in this Section 2.5.
(c) A stockholder must give timely, written notice to the Secretary of the Corporation
to nominate directors at an annual meeting pursuant to Section 2.5(b) hereof or to propose
business to be brought before an annual or special meeting pursuant to clause (iii) of
Section 2.5(a) hereof. To be timely in the case of an annual meeting, a stockholders notice
must be received at the principal executive offices of the Corporation not more than 180
days nor less than 120 days before the first anniversary of the preceding years annual
meeting. To be timely in the case of a special meeting or in the event that the date of the
annual meeting is changed by more than 30 days from such anniversary date, a stockholders
notice must be received at the principal executive offices of the Corporation no later than
the close of business on the tenth day following the earlier of the day on which notice of
the meeting date was mailed or public disclosure of the meeting date was made. For purposes
of this Section 2.5(c), public disclosure shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national news service
or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934. Such
stockholders notice shall set forth (i) with respect to each matter, if any, that the
stockholder proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting and the reasons for conducting such business at the
meeting, (ii) with respect to each person, if any, whom the stockholder proposes to nominate
for election as a director, all information relating to such person (including such persons
written consent to being named in the proxy statement as a nominee and to serving as a
director) that is required under the Securities Exchange Act of 1934, as amended, (iii) the
name and address, as they appear on the Corporations records, of the stockholder proposing
such business or nominating such persons (as the case may be), and the name and address of
the beneficial owner, if any, on whose behalf the proposal or nomination is made, (iv) the
class and number of shares of capital stock of the Corporation that are owned beneficially
and of record by such stockholder of record and by the beneficial owner, if any, on whose
behalf the proposal or nomination is made, and (v) any material interest or relationship
that such stockholder of record and/or the beneficial owner, if any, on whose behalf the
proposal or nomination is made may respectively have in such business or with such nominee.
At the request of the Board of Directors, any person nominated for election as a director
shall furnish to the
Secretary of the Corporation the information required to be set forth in a
stockholders notice of nomination which pertains to the nominee.
(d) Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted, and no person shall be nominated to serve as a director, at an annual or special
meeting of stockholders, except in accordance with the procedures set forth in this Section
2.5. The chairman of the meeting shall, if the facts warrant, determine that business was
not properly brought before the meeting, or that a nomination was not made, in accordance
with the procedures prescribed by these bylaws and, if he shall so determine, he shall so
declare to the meeting, and any such business not properly brought before the meeting shall
not be transacted and any defective nomination shall be disregarded. A stockholder shall
also comply with all applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the matters set forth in
this Section 2.5.
2.6 Voting List. At least 10 days before each meeting of stockholders, the Secretary
or other officer of the Corporation who has charge of the Corporations 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 stockholders entitled to vote thereat,
arranged in alphabetical order and showing the address of each stockholder and number of shares of
capital stock registered in the name of each stockholder. For a period of 10 days prior to such
meeting, such list shall be kept on file at a place within the city where the meeting is to be
held, which place shall be specified in the notice of 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 and shall be
open to examination by any stockholder, for any purpose germane to the meeting, during ordinary
business hours. Such list shall be produced at such meeting and kept at the meeting at all times
during such meeting and may be inspected by any stockholder who is present.
2.7 Quorum. The holders of one-third of the outstanding shares of capital stock
entitled to vote on a matter, present in person or by proxy, shall constitute a quorum at any
meeting of stockholders, except as otherwise provided by law, the Certificate of Incorporation, or
these bylaws. If a quorum shall not be present, in person or by proxy, 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 without notice other than announcement at the meeting (unless the Board
of Directors, after such adjournment, fixes a new record date for the adjourned meeting), until a
quorum shall be present, in person or by proxy. At any adjourned meeting at which a quorum shall be
present, in person or by proxy, any business may be transacted which may have been transacted at
the original meeting had a quorum been present; provided that, if the adjournment is for more than
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.
2.8 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 of capital stock entitled to
vote thereat who are present, in person or by proxy, shall decide any question brought before such
meeting, unless the question is one on which, by express provision of law, 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 such question; provided, however, that the
vote of the holders of a plurality of the outstanding shares of capital stock entitled to vote in
the election of directors who are present, in person or by proxy, shall be required to effect
elections of directors. 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.
2.9 Method of Voting; Proxies. Except as otherwise provided in the Certificate of
Incorporation or by law, each outstanding share of capital stock, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of stockholders. Elections of
directors need not be by written ballot. At any meeting of stockholders, every stockholder having
the right to vote may vote either in person or by a proxy executed in writing by the stockholder or
by his duly authorized attorney-in-fact. Each such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy. If no date is stated in a proxy,
such proxy shall be presumed to have been executed on the date of the meeting at which it is to be
voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest sufficient in law to
support an irrevocable power or unless otherwise made irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders entitled (a) to notice
of or to vote at any meeting of stockholders or any adjournment thereof, (b) to receive payment of
any dividend or other distribution or allotment of any rights, or (c) to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of Directors, for any such
determination of stockholders, such date in any case to be not more than 60 days and not less than
10 days prior to such meeting nor more than 60 days prior to any other action. If no record date is
fixed, then 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.
2.11 Conduct of Meeting. The Chairman of the Board, if such position has been filled,
shall preside at all meetings of stockholders, and, if such position has not been filled or if the
Chairman of the Board is absent or otherwise unable to act, the Chief Executive Officer shall
preside at all meetings of stockholders unless the Chief Executive Officer position has not been
filled or the Chief Executive Officer is absent or otherwise unable to act, in which case the
President shall preside at all meetings of the stockholders. The Secretary shall keep the records
of each meeting of stockholders. In the absence or inability to act of any such person, such
person=s duties shall be performed by the person given the authority to act for such absent or
non-acting person under these bylaws or by resolution adopted by the Board of Directors, or if no
person has been given such authority, by some person appointed at the meeting.
2.12 Inspectors of Election. Before any meeting of stockholders, the Board of
Directors may appoint any person other than nominees for office to act as inspectors of election at
the meeting or its adjournment. If no inspectors of election are so appointed, the presiding person
may, and on request of any stockholder or stockholders proxy shall, appoint inspector(s) of
election at the meeting of stockholders. If any person appointed as inspector fails to appear or
fails or refuses to act, the presiding person may, upon the request of any stockholder or
stockholders proxy shall, appoint a person to fill such vacancy.
The duties of these inspectors shall be as follows:
(a) Determine the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum and then authenticity, validity and
effect of proxies;
(b) Receive votes or ballots;
(c) Herein determine all challenges and questions in any way arising in connection with
the right to vote;
(d) Count and tabulate all votes;
(e) Report to the Board of Directors the results based on the information assembled by
the inspectors; and
(f) Do any other acts that be proper to conduct the election or vote with fairness to
all stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
3.2 Number; Qualification; Election; Term. The Board of Directors shall consist of not
less than five (5)
nor more than fifteen (15) directors. Subject to the preceding sentence, the
number of directors which shall constitute the whole Board of Directors shall from time to time be
fixed and determined by resolution adopted by the Board of Directors.
3.3 Change in Number. No decrease in the number of directors constituting the entire
Board of Directors shall have the effect of shortening the term of any incumbent director.
3.4 Removal; Vacancies. Any or all directors may be removed for or without cause at
any annual or special meeting of stockholders, upon the affirmative vote of the holders of a
majority of the outstanding shares of each class of capital stock then entitled to vote in person
or by proxy at an election of such director or directors, provided that notice of the intention to
act upon such matter shall have been given in the notice calling such meeting. Newly created
directorships resulting from any increase in the authorized number of directors and any vacancies
occurring in the Board of Directors caused by death, resignation, retirement, disqualification,
removal or other termination from office of any directors may be filled by the vote of a majority
of the directors then in office, though less than a quorum, or by the affirmative vote, at a
special meeting of the stockholders called for the purpose of filling such directorship, of the
holders of a majority of the outstanding shares of capital stock then entitled to vote in person or
by proxy at such meeting. Each successor director so chosen shall hold office until his respective
successor shall have been duly elected and qualified.
3.5 Meetings of Directors. The directors may hold their meetings and may have an
office and keep the records of the Corporation, except as otherwise provided by law, in such place
or places within or without the State of Delaware as the Board of Directors may from time to time
determine or as shall be specified in the notice of such meeting or duly executed waiver of notice
of such meeting.
3.6 First Meeting. Each newly elected Board of Directors may hold its first meeting
for the purpose of organization and the transaction of business without further notice, if a quorum
is present, immediately after and at the same place as the annual meeting of stockholders, unless
by unanimous consent of the Board of Directors then elected and serving such time or place shall be
changed.
3.7 Election of Officers. At the first meeting of the Board of Directors after each
annual meeting of stockholders at which a quorum shall be present, the Board of Directors shall
elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the Board of Directors shall be held at such
times and places as shall be designated from time to time by resolution of the Board of Directors.
Notice of such regular meetings shall not be required.
3.9 Special Meetings. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board, the Chief Executive Officer, the President, or by
written request of a majority of the Board of Directors.
3.10 Notice. The Secretary shall give notice of each special meeting to each director
at least four days before the meeting or two days if such notice is delivered by facsimile or
electronic transmission. Notice of any such meeting need not be given to any director who, either
before or after the meeting, submits a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him. The purpose of any
special meeting shall be specified in the notice or waiver of notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the Board of Directors, a majority of
the directors then in office shall constitute a quorum for the transaction of business. If at any
meeting of the Board of Directors there is less than a quorum present, a majority of those present
or any director solely present may adjourn the meeting from time to time without further notice.
Unless the act of a greater number is required by law, the Certificate of Incorporation, or these
bylaws, the act of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the Board of Directors. At any time that the Certificate of
Incorporation provides that directors elected by the holders of a class or series of stock shall
have more or less than one vote per director on any
matter, every reference in these bylaws to a majority or other proportion of directors shall
refer to a majority or other proportion of the votes of such directors.
3.12 Procedure. At meetings of the Board of Directors, business shall be transacted in
such order as from time to time the Board of Directors may determine. The Chairman of the Board, if
such position has been filled, and, if such position has not been filled or if the Chairman of the
Board is absent or otherwise unable to act, the Chief Executive Officer unless the Chief Executive
Officer position has not been filled or the Chief Executive Officer is absent or otherwise unable
to act, in which case the President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of such persons, a chairman shall be chosen by the Board of Directors
from among the directors present. The Secretary of the Corporation shall act as the secretary of
each meeting of the Board of Directors unless the Board of Directors appoints another person to act
as secretary of the meeting. The Board of Directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.13 Action Without Meeting. Any action required by statute to be taken at a meeting
of the Board of Directors, or any action which may be taken at a meeting of the Board of Directors,
may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be
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.
3.14 Compensation. The Board of Directors shall have the authority to fix the
compensation, including fees and reimbursement of expenses, paid to directors for attendance at
regular or special meetings of the Board of Directors or any committee thereof; provided, that
nothing contained herein shall be construed to preclude any director from serving the Corporation
in any other capacity or receiving compensation therefor.
3.15 Interested Directors, Officers and Stockholders.
(a) Validity. Any contract or other transaction between the corporation and any
of its directors, officers or stockholders (or any corporation or firm in which any of them
are directly or indirectly interested) shall be valid for all purposes notwithstanding the
presence of such director, officer or stockholder at the meeting authorizing such contract
or transaction or his participation in such meeting or authorization.
(b) Disclosure, Approval. The foregoing shall, however, apply only if the
interest of each such director, officer or stockholder is known or disclosed:
(i) to the Board of Directors and it nevertheless authorizes or ratifies the
contract or transaction by a majority of the directors present, each such interested
director to be counted in determining whether a quorum is present but not in
calculating the majority necessary to carry the vote; or
(ii) to the stockholders and they nevertheless authorize or ratify the contract
or transaction by a majority of the shares present, each such interested person to
be counted for quorum and voting purposes.
(c) Non-Exclusive. This provision shall not be construed to invalidate any
contract or transaction which would be valid in the absence of this provision.
ARTICLE FOUR: EXECUTIVE COMMITTEE
4.1 Designation. The Board of Directors may, by resolution adopted by a majority of
the whole board, designate an executive committee, to consist of two or more of the directors of
the corporation.
4.2 Authority. The executive committee, to the extent provided in such resolution,
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 where action of the full Board of Directors is
required by statute or by the certificate of
incorporation, and shall have power to authorize the seal of the corporation to be affixed to
all papers which may require it.
4.3 Procedure. The executive committee shall keep regular minutes of its proceedings
and report the same to the Board of Directors when required.
4.4 Removal. Any member of the executive committee may be removed by the Board of
Directors by the affirmative vote of a majority of the whole board, whenever in its judgment the
best interests of the corporation will be served thereby.
4.5 Responsibility. The designation of an executive committee and the delegation of
authority to it shall not operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed upon it or him by law.
ARTICLE FIVE: OTHER COMMITTEES
5.1 Designation. The Board of Directors may designate one or more committees.
5.2 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.
5.3 Authority. Each committee, to the extent expressly provided in the resolution
establishing such committee, shall have and may exercise all of the powers and authority of the
Board of Directors in the management of the business and affairs of the Corporation except to the
extent expressly restricted by law, the Certificate of Incorporation, or these bylaws.
5.4 Committee Changes. 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.
5.5 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. If no alternate committee members have been
so appointed to a committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or disqualified member.
5.6 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.
5.7 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 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.
5.8 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 unless the committee consists of one (1) or two (2) members, in which event one member
shall constitute a quorum. 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.
5.9 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.
5.10 Compensation. Committee members may, by resolution of the Board of Directors, be
allowed a fixed sum and expenses of attendance, if any, for attending any committee meetings or a
stated salary.
5.11 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.
5.12 Removal. Any members of any committee so designated may be removed by the Board
of Directors by the affirmative vote of a majority of the whole board, whenever in its judgment the
best interests of the corporation will be served thereby.
ARTICLE SIX: NOTICE
6.1 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, facsimile, or
electronic transmission). Any notice required or permitted to be given by mail shall be deemed to
be delivered and given at the time when the same is 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 delivered and 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, or telefax
shall be deemed to be delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
6.2 Waiver. Whenever any notice is required to be given to any stockholder, director,
or committee member of the Corporation by statute, the Certificate of Incorporation, or these
bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the giving of such notice.
Attendance of a stockholder, director, or committee member at a meeting shall constitute a waiver
of notice of such meeting, except where such person attends for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE SEVEN: OFFICERS
7.1 Number; Titles; Term of Office. The officers of the Corporation shall be a Chief
Executive Officer, a President, a Secretary, a Treasurer, and such other officers as the Board of
Directors may from time to time elect or appoint, including one or more Vice Presidents (with each
Vice President to have such descriptive title, if any, as the Board of Directors shall determine)
and a Chief Operating Officer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall resign or shall have been
removed in the manner hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a resident of the
State of Delaware.
7.2 Removal; Vacancies. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the best interest of
the Corporation will be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer or agent shall not
of itself create contract rights. Any vacancy occurring in any office of the Corporation (by death,
resignation, removal, or otherwise) may be filled by the Board of Directors.
7.3 Authority. Officers shall have such authority and perform such duties in the
management of the Corporation as are provided in these bylaws or as may be determined by resolution
or resolutions of the Board of Directors not inconsistent with these bylaws.
7.4 Compensation. The compensation, if any, of officers and agents shall be fixed from
time to time by the Board of Directors; provided, however, that the Board of
Directors may delegate the power to determine the compensation of any non-executive officer and
agent (other than the officer to whom such power is delegated) to the Chairman of the Board, the
Chief Executive Officer or the President.
7.5 Chairman of the Board. The Board of Directors may from time to time elect from
among its members a Chairman of the Board who shall not be an officer of the Corporation. The
Chairman of the Board shall preside at all meetings of the stockholders and of the Board of
Directors and shall have such additional powers and duties as may be prescribed by these bylaws or
by the Board of Directors. The Chairman of the Board shall hold such position until his successor
shall have been duly elected and qualified, until his death, or he shall resign or shall have been
removed in the manner provided herein.
7.6 Chief Executive Officer. The Chief Executive Officer shall have the general
management and control of the Corporation and may sign all certificates for shares of stock for the
Corporation. In the absence or inability of the Chairman of the Board to act, the Chief Executive
Officer shall exercise all of the powers and discharge all of the duties of the Chairman of the
Board. As between the Corporation and third parties, any action taken by the Chief Executive
Officer in the performance of the duties of the Chairman of the Board shall be conclusive evidence
that the Chairman of the Board is absent or unable to act. The Chief Executive Officer may also
hold the position of President.
7.7 President. The President, subject to the supervision of the Chairman of the Board
and the Chief Executive Officer, shall have general executive charge, management, and control of
the properties of the Corporation in the ordinary course of its business, with all such powers with
respect to such properties as may be reasonably incident to such responsibilities. In the absence
or inability of the Chief Executive Officer to act, the President shall exercise all of the powers
and discharge all of the duties of the Chief Executive Officer. As between the Corporation and
third parties, any action taken by the President in the performance of the duties of the Chief
Executive Officer shall be conclusive evidence that the Chief Executive Officer is absent or unable
to act. The President may sign all certificates for shares of stock of the Corporation. If there is
not a Chief Operating Officer, the President shall have general executive charge, management and
control of the operations of the Corporation in the ordinary course of its business, with all such
powers with respect to such operations as may be reasonable incident to such responsibilities.
7.8 Chief Operating Officer. The Chief Operating Officer, if such officer be elected,
shall have general executive charge, management and control of the operations of the Corporation in
the ordinary course of its business, with all such powers with respect to such operations as may be
reasonably incident to such responsibilities. The Chief Operating Officer shall have the usual
powers and duties incident to the position of Chief Operating Officer of a corporation, subject to
the control of the Board of Directors, the Chairman of the Board, the Chief Executive Officer and
the President.
7.9 Vice Presidents. Each Vice President shall have such powers and duties as may be
assigned to him by the Board of Directors, the Chairman of the Board, the Chief Executive Officer
or the President, and (in order of their seniority as determined by the Board of Directors or, in
the absence of such determination, as determined by the length of time they have held the office of
Vice President) shall exercise the powers of the President during that officers absence or
inability to act. As between the Corporation and third parties, any action taken by a Vice
President in the performance of the duties of the President shall be conclusive evidence of the
absence or inability to act of the President at the time such action was taken.
7.10 Treasurer. The Treasurer shall have custody of the Corporations funds and
securities, shall keep full and accurate account of receipts and disbursements, shall deposit all
monies and valuable effects in the name and to the credit of the Corporation in such depository or
depositories as may be designated by the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board, the Chief Executive Officer
or the President.
7.11 Assistant Treasurers. Each Assistant Treasurer shall have such powers and duties
as may be assigned to him by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President. The Assistant Treasurers (in the order of their seniority as determined
by the Board of Directors or, in the absence of such a determination, as determined by the length
of time they have held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officers absence or inability to act.
7.12 Secretary. Except as otherwise provided in these bylaws, the Secretary shall keep
the minutes of all meetings of the Board of Directors and of the stockholders in books provided for
that purpose, and he shall attend to the giving and service of all notices. He may sign with the
Chairman of the Board, the Chief Executive Officer or the President, in the name of the
Corporation, all contracts of the Corporation and affix the seal, if any, of the Corporation
thereto. He may sign with the Chairman of the Board, the Chief Executive Officer or the President
all certificates for shares of stock of the Corporation, and he shall have charge of the
certificate books, transfer books, and stock papers as the Board of Directors may direct, all of
which shall at all reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all duties incident to
the office of the Secretary, subject to the control of the Board of Directors, the Chairman of the
Board, the Chief Executive Officer and the President.
7.13 Assistant Secretaries. Each Assistant Secretary shall have such powers and duties
as may be assigned to him by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President. The Assistant Secretaries (in the order of their seniority as determined
by the Board of Directors or, in the absence of such a determination, as determined by the length
of time they have held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officers absence or inability to act.
ARTICLE EIGHT: CERTIFICATES AND STOCKHOLDERS
8.1 Certificates for Shares. Shares of stock of the Corporation may be certificated or
uncertificated as provided under the Delaware Corporation Law. If shares are certificated,
certificates for shares of stock of the Corporation shall be in such form as shall be approved by
the Board of Directors. Notwithstanding the foregoing, each holder of uncertificated shares shall
be entitled, upon request, to a certificate representing such shares. The certificates shall be
signed by the Chairman of the Board, the Chief Executive Officer, the President or a Vice President
and also by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer.
Any and all signatures on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar who has signed, or
whose facsimile signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if he were such officer, transfer agent, or registrar at
the date of issue. The certificates shall be consecutively numbered and shall be entered in the
books of the Corporation as they are issued and shall exhibit the holders name and the number of
shares. Except as otherwise provided by law, the rights and obligations of holders of
uncertificated shares and the rights and obligations of the holders of certificated shares of the
same class and series shall be identical.
8.2 Replacement of Lost or Destroyed Certificates. The Corporation may direct a new
certificate or certificates to be issued or may register uncertificated shares in place of a
certificate or certificates theretofore issued by the Corporation and alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate or
certificates representing shares to be lost or destroyed. When authorizing such issue of a new
certificate or certificates or the registration of uncertificated shares, the Board of Directors
may, in its discretion and as a condition precedent to the issuance or registration thereof,
require the owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or to give the
Corporation a bond with a surety or sureties satisfactory to the Corporation in such sum as it may
direct as indemnity against any claim, or expense resulting from a claim, that may be made against
the Corporation with respect to the certificate or certificates alleged to have been lost or
destroyed.
8.3 Transfer of Shares. Shares of stock of the Corporation shall be transferable only
on the books of the Corporation by the holders thereof in person or by their duly authorized
attorneys or legal representatives. If such shares are certificated, 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, the Corporation or its transfer agent shall issue a new certificate or register
uncertificated shares to the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
Upon the receipt of proper transfer instructions of uncertificated shares by the holders
thereof in person or by their duly authorized attorneys or legal representatives, such
uncertificated shares shall be cancelled, issuance of new equivalent certificated or registration
of uncertificated shares shall be made to the stockholder entitled thereto and the transaction
shall be recorded on the books of the Corporation.
8.4 Registered Stockholders. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
8.5 Regulations. The Board of Directors shall have the power and authority to make all
such rules and regulations as they may deem expedient concerning the issue, transfer, and
registration or, if the shares are certificated, the replacement of certificates for shares of
stock of the Corporation.
8.6 Legends. The Board of Directors shall have the power and authority to provide
that, if the shares are certificated, certificates representing shares of stock bear 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.
ARTICLE NINE: INDEMNIFICATION
9.1 Right to Indemnification. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that
he is or was a director or an officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer or trustee of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an employee benefit plan
(hereinafter an indemnitee), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or trustee or in any other capacity while serving as a
director, officer or trustee, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss (including attorneys
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith; provided, however,
that, except as provided in Section 9.3 with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
9.2 Right to Advancement of Expenses. In addition to the right to indemnification
conferred in Section 9.1, an indemnitee shall also have the right to be paid by the Corporation the
expenses (including attorneys fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an advancement of expenses); provided, however,
that, if the Delaware Corporation Law requires, an advancement of expenses incurred by an
indemnitee in his capacity as a director or officer (and not in any other capacity in which service
was or is rendered by such indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an
undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal
(hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified for
such expenses under this Section 9.2 or otherwise.
9.3 Right of Indemnitee to Bring Suit. If a claim under Sections 9.1 or 9.2 is not
paid in full by the Corporation within sixty (60) days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled
to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii)
in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Corporation shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met any applicable standard for indemnification set forth
in the Delaware Corporation Law. Neither the failure of the Corporation (including its directors
who are not parties to such action, a committee of such directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct of indemnification set forth in the Delaware Corporation Law, nor an
actual determination by the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct for indemnification, shall create a
presumption that the indemnitee has not met the applicable standard of conduct for indemnification
or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article Nine or otherwise shall be on
the Corporation.
9.4 Non-Exclusivity of Rights. The rights to indemnification and to the advancement of
expenses conferred in this Article Nine shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Certificate of Incorporation, bylaws,
agreement, vote of stockholders or directors or otherwise.
9.5 Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware Corporation Law.
9.6 Indemnification of Employees and Agents of the Corporation. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any employee or agent of the Corporation to
the fullest extent of the provisions of this Article Nine with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
9.7 Nature of Rights. The rights conferred upon indemnitees in this Article Nine shall
be contract rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer or trustee and shall inure to the benefit of the indemnitees heirs, executors
and administrators. Any amendment, alteration or repeal of this Article Nine that adversely affects
any right of an indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment or repeal.
ARTICLE TEN: MISCELLANEOUS PROVISIONS
10.1 Dividends. Subject to provisions of law and the Certificate of Incorporation,
dividends may be declared by the Board of Directors at any regular or special meeting and may be
paid in cash, in property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the Board of Directors.
10.2 Reserves. There may be created by the Board of Directors out of funds of the
Corporation legally available therefor such reserve or reserves as the directors from time to time,
in their discretion, consider proper to provide for contingencies, to equalize dividends, or to
repair or maintain any property of the Corporation, or for such other purpose as the Board of
Directors shall consider beneficial to the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
10.3 Books and Records. The Corporation shall keep correct and complete books and
records of account, shall keep minutes of the proceedings of its stockholders and Board of
Directors and shall keep at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of its stockholders, giving the names and addresses of
all stockholders and the number and class of the shares held by each.
10.4 Reliance upon Books, Reports and Records. Each director, each member of any
committee designated by the Board of Directors, and each officer of the Corporation shall, in the
performance of his duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or committees of the Board of
Directors so designated, or by any other person as to matters which such director or committee
member reasonably believes are within such other persons professional or expert competence and who
has been selected with reasonable care by or on behalf of the Corporation.
10.5 Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of
Directors; provided, that if such fiscal year is not fixed by the Board of Directors and the
selection of the fiscal year is not expressly deferred by the Board of Directors, the fiscal year
shall be the calendar year.
10.6 Seal. The seal of the Corporation shall be such as from time to time may be
approved by the Board of Directors.
10.7 Resignations. Any director, committee member, or officer may resign by so stating
at any meeting of the Board of Directors or by giving notice to the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, the President, or the Secretary. Such
resignation shall take effect at the time specified therein or, if no time is specified therein,
immediately upon its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
10.8 Telephone Meetings. Members of the Board of Directors and members of a committee
of the Board of Directors may participate in and hold a meeting of such Board of Directors or
committee by means of a conference telephone or similar communications equipment by means of which
persons participating in the meeting can hear each other, and participation in a meeting pursuant
to this Section shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
10.9 Action Without a Meeting. Unless otherwise restricted by the Certificate of
Incorporation or by these bylaws, any action required or permitted to be taken at a meeting of the
Board of Directors, or of any committee of the Board of Directors, may be taken without a meeting
if a consent or consents in writing, setting forth the action so taken, shall be signed by all the
directors or all the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as a vote of such
directors or committee members, as the case may be, and may be stated as such in any certificate or
document filed with the Secretary of State of the State of Delaware or in any certificate delivered
to any person. Such consent or consents shall be filed with the minutes of proceedings of the Board
of Directors or committee, as the case may be.
10.10 Time Periods. In applying any provision of these Bylaws which requires that an
act be done or not be done a specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event, calendar days shall be used, the
day of the doing of the act shall be excluded, and the day of the event shall be included.
10.11 Invalid Provisions. If any part of these bylaws shall be held invalid or
inoperative for any reason, the remaining parts, so far as it is possible and reasonable, shall
remain valid and operative.
10.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in interpretation.
10.13 References. Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender should include the other gender where
appropriate.
10.14 Amendments. The Board of Directors may, upon the affirmative vote of a majority
of the directors then serving, make, adopt, alter, amend, and repeal from time to time these bylaws
and make from time to time new bylaws of the Corporation (subject to the right of the stockholders
entitled to vote thereon to adopt, alter, amend, and repeal bylaws made by the Board of Directors
or to make new bylaws).
* * * * * * *
The undersigned Secretary of the Corporation hereby certifies that the foregoing bylaws were
adopted, as amended, at a duly called meeting of the directors of the Corporation on the 16th day
of April, 2011.
/s/ Shirley Anderson | ||||
Shirley Anderson, Corporate Secretary | ||||