Attached files
Exhibit 3.4
AMENDED AND RESTATED BYLAWS OF
YUMA ENERGY, INC.
(initially adopted on February 10, 2016 and amended and restated
on October 26,
2016)
TABLE OF CONTENTS
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Page
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ARTICLE
I - CORPORATE OFFICES
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1
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1.1
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REGISTERED
OFFICE
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1
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1.2
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OTHER
OFFICES
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1
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ARTICLE
II - MEETINGS OF STOCKHOLDERS
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1
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2.1
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PLACE
OF MEETINGS
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1
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2.2
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ANNUAL
MEETING
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1
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2.3
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SPECIAL
MEETING
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1
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2.4
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ADVANCE
NOTICE PROCEDURES
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2
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2.5
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NOTICE
OF STOCKHOLDERS’ MEETINGS
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5
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2.6
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QUORUM
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5
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2.7
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ADJOURNED MEETING;
NOTICE
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5
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2.8
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CONDUCT
OF BUSINESS
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6
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2.9
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VOTING
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6
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2.10
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STOCKHOLDER ACTION
BY WRITTEN CONSENT WITHOUT A MEETING
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6
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2.11
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RECORD
DATES
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7
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2.12
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PROXIES
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7
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2.13
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LIST OF
STOCKHOLDERS ENTITLED TO VOTE
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7
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2.14
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INSPECTORS OF
ELECTION
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8
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ARTICLE
III - DIRECTORS
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8
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3.1
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POWERS
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8
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3.2
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NUMBER
OF DIRECTORS
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8
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3.3
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ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
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9
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3.4
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RESIGNATION AND
VACANCIES
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9
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3.5
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PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
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9
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3.6
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REGULAR
MEETINGS
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10
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3.7
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SPECIAL
MEETINGS; NOTICE
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10
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3.8
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QUORUM;
VOTING
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10
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3.9
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BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
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11
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3.10
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FEES
AND COMPENSATION OF DIRECTORS
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11
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3.11
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REMOVAL
OF DIRECTORS
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11
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ARTICLE
IV - COMMITTEES
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11
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4.1
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COMMITTEES OF
DIRECTORS
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11
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4.2
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COMMITTEE
MINUTES
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11
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4.3
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MEETINGS AND ACTION
OF COMMITTEES
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11
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4.4
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SUBCOMMITTEES
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12
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ARTICLE
V - OFFICERS
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12
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5.1
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OFFICERS
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12
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5.2
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APPOINTMENT OF
OFFICERS
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12
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5.3
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SUBORDINATE
OFFICERS
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12
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5.4
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REMOVAL
AND RESIGNATION OF OFFICERS
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13
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TABLE OF CONTENTS
(continued)
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Page
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5.5
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VACANCIES IN
OFFICES
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13
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5.6
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CHAIRPERSON OF THE
BOARD
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13
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5.7
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CHIEF
EXECUTIVE OFFICER
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13
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5.8
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PRESIDENTS
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13
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5.9
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VICE
PRESIDENTS
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14
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5.10
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SECRETARY
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14
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5.11
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CHIEF
FINANCIAL OFFICER
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14
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5.12
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TREASURER
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15
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5.13
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ASSISTANT
SECRETARY
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15
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5.14
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ASSISTANT
TREASURER
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15
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5.15
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REPRESENTATION OF
SHARES OF OTHER CORPORATIONS
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15
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5.16
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AUTHORITY AND
DUTIES OF OFFICERS
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15
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ARTICLE
VI - STOCK
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15
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6.1
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STOCK
CERTIFICATES; PARTLY PAID SHARES
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15
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6.2
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SPECIAL
DESIGNATION ON CERTIFICATES
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16
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6.3
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LOST
CERTIFICATES
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16
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6.4
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DIVIDENDS
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16
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6.5
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TRANSFER OF
STOCK
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17
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6.6
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STOCK
TRANSFER AGREEMENTS
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17
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6.7
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REGISTERED
STOCKHOLDERS
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17
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ARTICLE
VII - MANNER OF GIVING NOTICE AND WAIVER
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17
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7.1
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NOTICE
OF STOCKHOLDERS’ MEETINGS
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17
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7.2
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NOTICE
BY ELECTRONIC TRANSMISSION
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17
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7.3
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NOTICE
TO STOCKHOLDERS SHARING AN ADDRESS
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18
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7.4
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NOTICE
TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
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18
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7.5
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WAIVER
OF NOTICE
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18
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ARTICLE
VIII - FORUM FOR ADJUDICATION OF DISPUTES
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19
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ARTICLE
IX - INDEMNIFICATION
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19
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9.1
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INDEMNIFICATION OF
DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
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19
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9.2
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INDEMNIFICATION OF
DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION
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19
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9.3
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SUCCESSFUL
DEFENSE
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19
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9.4
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INDEMNIFICATION OF
OTHERS
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20
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9.5
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ADVANCE
PAYMENT OF EXPENSES
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20
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9.6
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LIMITATION ON
INDEMNIFICATION
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20
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9.7
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DETERMINATION;
CLAIM
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21
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9.8
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NON-EXCLUSIVITY OF
RIGHTS
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21
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9.9
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INSURANCE
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21
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9.10
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SURVIVAL
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22
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9.11
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EFFECT
OF REPEAL OR MODIFICATION
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22
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9.12
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CERTAIN
DEFINITIONS
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22
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ARTICLE
X - GENERAL MATTERS
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22
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10.1
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EXECUTION OF
CORPORATE CONTRACTS AND INSTRUMENTS
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22
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10.2
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FISCAL
YEAR
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22
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10.3
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SEAL
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23
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10.4
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CONSTRUCTION;
DEFINITIONS
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23
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ARTICLE
XI - AMENDMENTS
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23
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AMENDED AND RESTATED BYLAWS
OF
YUMA ENERGY, INC.
ARTICLE I - CORPORATE OFFICES
1.1 REGISTERED
OFFICE
The registered office of Yuma Energy, Inc. (the
“corporation”), shall be fixed in the
corporation’s certificate of incorporation, as the same may
be amended and/or restated from time to time (the
“certificate of
incorporation”).
1.2 OTHER
OFFICES
The corporation’s board of directors (the
“board
of directors”) may at any
time establish other offices at any place or places where the
corporation is qualified to do business.
ARTICLE II - MEETINGS OF STOCKHOLDERS
2.1 PLACE
OF MEETINGS
Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the
board of directors. The board of directors may, in its sole
discretion, determine that a meeting of stockholders shall not be
held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the
Delaware General Corporation Law (the “DGCL”). In the absence of any such designation
or determination, stockholders’ meetings shall be held at the
corporation’s principal executive office.
2.2 ANNUAL
MEETING
The
annual meeting of stockholders shall be held on such date, at such
time, and at such place (if any) within or without the State of
Delaware as shall be designated from time to time by the board of
directors and stated in the corporation’s notice of the
meeting. At the annual meeting, directors shall be elected and any
other proper business, brought in accordance with Section 2.4
of these bylaws, may be transacted. The board of directors may
cancel, postpone or reschedule any previously scheduled annual
meeting at any time, before or after the notice for such meeting
has been sent to the stockholders.
2.3 SPECIAL
MEETING
(i) A
special meeting of the stockholders, other than those required by
statute, may be called at any time by (A) the board of
directors, (B) the chairperson of the board of directors,
(C) the chief executive officer of the corporation, (D) the
president of the corporation (in the absence of a chief executive
officer), or (E) by the secretary of the corporation whenever
requested in writing to do so by holders of at least ten percent
(10%) of the voting power of the issued and outstanding shares of
the corporation entitled to vote generally in the election of
directors, voting together as a single class, but a special meeting
may not be called by any other person or
persons.
(ii) If
any person(s) other than the board of directors calls a special
meeting, the request shall:
(A)
be in writing;
(B)
specify the general nature of the business proposed to be
transacted; and
(C)
be delivered personally or sent by registered mail or by facsimile
transmission to the secretary of the corporation.
1
(iii) Upon
receipt of such a request, the board of directors shall determine
the date, time and place of such special meeting, which must be
scheduled to be held on a date that is within ninety (90) days of
receipt by the secretary of the request therefor, and the secretary
of the corporation shall prepare a proper notice thereof. No
business may be transacted at such special meeting other than the
business specified in the notice to stockholders of such meeting.
Nothing contained in this Section 2.3(iii) shall be construed
as limiting, fixing or affecting the time when a meeting of
stockholders called by action of the board of directors may be
held.
2.4 ADVANCE
NOTICE PROCEDURES
(i) Advance
Notice of Stockholder Business. At an annual meeting of the stockholders,
only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual
meeting, business must be brought: (A) pursuant to the
corporation’s proxy materials with respect to such meeting,
(B) by or at the direction of the board of directors, or
(C) by a stockholder of the corporation who (1) is a
stockholder of record at the time of the giving of the notice
required by this Section 2.4(i) and on the record date for the
determination of stockholders entitled to vote at the annual
meeting and (2) has timely complied in proper written form
with the notice procedures set forth in this Section 2.4(i).
In addition, for business to be properly brought before an annual
meeting by a stockholder, such business must be a proper matter for
stockholder action pursuant to these bylaws and applicable law. For
the avoidance of doubt, except for proposals properly made in
accordance with Rule 14a-8 under the Securities Exchange Act of
1934, as amended, or any successor thereto (the
“Exchange Act”), and the regulations thereunder (or any
successor rule and in any case as so amended), clause (C)
above shall be the exclusive means for a stockholder to bring
business before an annual meeting of
stockholders.
(a) To
comply with clause (C) of Section 2.4(i) above, a
stockholder’s notice must set forth all information required
under this Section 2.4(i) and must be timely received by the
secretary of the corporation. To be timely, a stockholder’s
notice must be received by the secretary at the principal executive
offices of the corporation not later than the 45th day nor earlier
than the 75th day before the one-year anniversary of the date on
which the corporation first mailed its proxy materials or a notice
of availability of proxy materials (whichever is earlier) for the
preceding year’s annual meeting; provided, however, that in the event that no annual meeting was
held in the previous year or if the date of the annual meeting is
advanced by more than thirty (30) days prior to or delayed by more
than sixty (60) days after the one-year anniversary of the date of
the previous year’s annual meeting, then, for notice by the
stockholder to be timely, it must be so received by the secretary
not earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on the
later of (i) the 90th day prior to such annual meeting, or
(ii) the 10th day following the day on which Public
Announcement (as defined below) of the date of such annual meeting
is first made. In no event shall any adjournment, rescheduling or
postponement of an annual meeting or the announcement thereof
commence a new time period for the giving of a stockholder’s
notice as described in this Section 2.4(i)(a). The term
“Public
Announcement” means
disclosure made in a press release reported by the Dow Jones News
Service, Associated Press or a comparable national news service or
in a document publicly filed by the corporation with the U.S.
Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(b) To
be in proper written form, a stockholder’s notice to the
secretary must set forth as to each matter of business the
stockholder intends to bring before the annual meeting: (1) a
brief description of the business intended to be brought before the
annual meeting and the reasons for conducting such business at the
annual meeting, (2) the name and address, as they appear on
the corporation’s books, of the stockholder proposing such
business and any Stockholder Associated Person (as defined below),
(3) the class and number of shares of the corporation that are
held of record or are beneficially owned by the stockholder or any
Stockholder Associated Person and any derivative positions held or
beneficially held by the stockholder or any Stockholder Associated
Person, (4) whether and the extent to which any hedging or
other transaction or series of transactions has been entered into
by or on behalf of such stockholder or any Stockholder Associated
Person with respect to any securities of the corporation, and a
description of any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of
shares), the effect or intent of which is to mitigate loss to, or
to manage the risk or benefit from share price changes for, or to
increase or decrease the voting power of, such stockholder or any
Stockholder Associated Person with respect to any securities of the
corporation, (5) any material interest of the stockholder or a
Stockholder Associated Person in such business, and (6) a
statement whether either such stockholder or any Stockholder
Associated Person will deliver a proxy statement and form of proxy
to holders of at least the percentage of the voting power of the
corporation’s voting shares required under applicable law to
carry the proposal (such information provided and statements made
as required by clauses (1) through (6), a
“Business Solicitation
Statement”). In addition,
to be in proper written form, a stockholder’s notice to the
secretary must be supplemented not later than ten (10) days
following the record date for the determination of stockholders
entitled to notice of the meeting to disclose the information
contained in clauses (3) and (4) above as of the record
date. For purposes of this Section 2.4, a
“Stockholder Associated
Person” of any
stockholder shall mean (i) any person controlling, directly or
indirectly, or acting in concert with, such stockholder,
(ii) any beneficial owner of shares of stock of the
corporation owned of record or beneficially by such stockholder and
on whose behalf the proposal or nomination, as the case may be, is
being made, or (iii) any person controlling, controlled by or
under common control with such person referred to in the preceding
clauses (i) and (ii).
2
(c) Without
exception, no business shall be conducted at any annual meeting
except in accordance with the provisions set forth in this
Section 2.4(i) and, if applicable, Section 2.4(ii). In
addition, business proposed to be brought by a stockholder may not
be brought before the annual meeting if such stockholder or a
Stockholder Associated Person, as applicable, takes action contrary
to the representations made in the Business Solicitation Statement
applicable to such business or if the Business Solicitation
Statement applicable to such business contains an untrue statement
of a material fact or omits to state a material fact necessary to
make the statements therein not misleading. The chairperson of the
annual meeting shall, if the facts warrant, determine and declare
at the annual meeting that business was not properly brought before
the annual meeting and in accordance with the provisions of this
Section 2.4(i), and, if the chairperson should so determine,
he or she shall so declare at the annual meeting that any such
business not properly brought before the annual meeting shall not
be conducted.
(ii) Advance
Notice of Director Nominations at Annual
Meetings. Notwithstanding
anything in these bylaws to the contrary, only persons who are
nominated in accordance with the procedures set forth in this
Section 2.4(ii) shall be eligible for election or re-election
as directors at an annual meeting of stockholders. Nominations of
persons for election to the board of directors of the corporation
shall be made at an annual meeting of stockholders only (A) by
or at the direction of the board of directors or (B) by a
stockholder of the corporation who (1) was a stockholder of
record at the time of the giving of the notice required by this
Section 2.4(ii) and on the record date for the determination
of stockholders entitled to vote at the annual meeting and
(2) has complied with the notice procedures set forth in this
Section 2.4(ii). In addition to any other applicable
requirements, for a nomination to be made by a stockholder, the
stockholder must have given timely notice thereof in proper written
form to the secretary of the corporation.
(a) To
comply with clause (B) of Section 2.4(ii) above, a
nomination to be made by a stockholder must set forth all
information required under this Section 2.4(ii) and must be
received by the secretary of the corporation at the principal
executive offices of the corporation at the time set forth in, and
in accordance with, the final three sentences of
Section 2.4(i)(a) above; provided additionally, however, that
in the event that the number of directors to be elected to the
board of directors is increased and there is no Public Announcement
naming all of the nominees for director or specifying the size of
the increased board made by the corporation at least ten (10) days
before the last day a stockholder may deliver a notice of
nomination pursuant to the foregoing provisions, a
stockholder’s notice required by this Section 2.4(ii)
shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be
received by the secretary of the corporation at the principal
executive offices of the corporation not later than the close of
business on the 10th day following the day on which such Public
Announcement is first made by the corporation.
(b) To
be in proper written form, such stockholder’s notice to the
secretary must set forth:
(1) as
to each person (a “nominee”) whom the stockholder proposes to nominate
for election or re-election as a director: (A) the name, age,
business address and residence address of the nominee, (B) the
principal occupation or employment of the nominee, (C) the
class and number of shares of the corporation that are held of
record or are beneficially owned by the nominee and any derivative
positions held or beneficially held by the nominee,
(D) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or
on behalf of the nominee with respect to any securities of the
corporation, and a description of any other agreement, arrangement
or understanding (including any short position or any borrowing or
lending of shares), the effect or intent of which is to mitigate
loss to, or to manage the risk or benefit of share price changes
for, or to increase or decrease the voting power of the nominee,
(E) a description of all arrangements or understandings
between or among any of the stockholder, each nominee and/or any
other person or persons (naming such person or persons) pursuant to
which the nominations are to be made by the stockholder or relating
to the nominee’s potential service on the board of directors,
(F) a written statement executed by the nominee acknowledging
that as a director of the corporation, the nominee will owe a
fiduciary duty under Delaware law with respect to the corporation
and its stockholders, and (G) any other information relating
to the nominee that would be required to be disclosed about such
nominee if proxies were being solicited for the election of the
nominee as a director, or that is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (including
without limitation the nominee’s written consent to being
named in the proxy statement, if any, as a nominee and to serving
as a director if elected); and
3
(2) as
to such stockholder giving notice, (A) the information
required to be provided pursuant to clauses (2) through
(5) of Section 2.4(i)(b) above, and the supplement
referenced in the second sentence of Section 2.4(i)(b) above
(except that the references to “business” in such
clauses shall instead refer to nominations of directors for
purposes of this paragraph), and (B) a statement whether
either such stockholder or Stockholder Associated Person will
deliver a proxy statement and form of proxy to holders at least the
percentage of the corporation’s voting shares reasonably
believed by such stockholder or Stockholder Associated Person to be
necessary to elect such nominee(s) (such information provided and
statements made as required by clauses (A) and (B) above,
a “Nominee Solicitation
Statement”).
(c) At
the request of the board of directors, any person nominated by a
stockholder for election as a director must furnish to the
secretary of the corporation (1) that information required to
be set forth in the stockholder’s notice of nomination of
such person as a director as of a date subsequent to the date on
which the notice of such person’s nomination was given and
(2) such other information as may reasonably be required by
the corporation to determine the eligibility of such proposed
nominee to serve as an independent director of the corporation or
that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such
nominee; in the absence of the furnishing of such information if
requested, such stockholder’s nomination shall not be
considered in proper form pursuant to this
Section 2.4(ii).
(d) Without
exception, no person shall be eligible for election or re-election
as a director of the corporation at an annual meeting of
stockholders unless nominated in accordance with the provisions set
forth in this Section 2.4(ii). In addition, a nominee shall
not be eligible for election or re-election if a stockholder or
Stockholder Associated Person, as applicable, takes action contrary
to the representations made in the Nominee Solicitation Statement
applicable to such nominee or if the Nominee Solicitation Statement
applicable to such nominee contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein not misleading. The chairperson of the
annual meeting shall, if the facts warrant, determine and declare
at the annual meeting that a nomination was not made in accordance
with the provisions prescribed by these bylaws, and if the
chairperson should so determine, he or she shall so declare at the
annual meeting, and the defective nomination shall be
disregarded.
(iii) Advance
Notice of Director Nominations for Special
Meetings.
(a) For
a special meeting of stockholders at which directors are to be
elected pursuant to Section 2.3, nominations of persons for
election to the board of directors shall be made only (1) by
or at the direction of the board of directors or (2) by any
stockholder of the corporation who (A) is a stockholder of
record at the time of the giving of the notice required by this
Section 2.4(iii) and on the record date for the determination
of stockholders entitled to vote at the special meeting and
(B) delivers a timely written notice of the nomination to the
secretary of the corporation that includes the information set
forth in Sections 2.4(ii)(b) and (ii)(c) above. To be timely,
such notice must be received by the secretary at the principal
executive offices of the corporation not later than the close of
business on the later of the 90th day prior to such special meeting
or the 10th day following the day on which Public Announcement is
first made of the date of the special meeting and of the nominees
proposed by the board of directors to be elected at such meeting.
In no event shall any adjournment, rescheduling or postponement of
a special meeting or the announcement thereof commence a new time
period for the giving of a stockholder’s notice. A person
shall not be eligible for election or re-election as a director at
a special meeting unless the person is nominated (i) by or at
the direction of the board of directors or (ii) by a
stockholder in accordance with the notice procedures set forth in
this Section 2.4(iii). In addition, a nominee shall not be
eligible for election or re-election if a stockholder or
Stockholder Associated Person, as applicable, takes action contrary
to the representations made in the Nominee Solicitation Statement
applicable to such nominee or if the Nominee Solicitation Statement
applicable to such nominee contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein not misleading.
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(b) The
chairperson of the special meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination or business
was not made in accordance with the procedures prescribed by these
bylaws, and if the chairperson should so determine, he or she shall
so declare at the meeting, and the defective nomination or business
shall be disregarded.
(iv) Other
Requirements and Rights. In
addition to the foregoing provisions of this Section 2.4, a
stockholder must also comply with all applicable requirements of
state law and of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this
Section 2.4, including, with respect to business such
stockholder intends to bring before the annual meeting that
involves a proposal that such stockholder requests to be included
in the corporation’s proxy statement, the requirements of
Rule 14a-8 (or any successor provision) under the Exchange
Act. Nothing in this Section 2.4 shall be deemed to affect any
right of the corporation to omit a proposal from the
corporation’s proxy statement pursuant to Rule 14a-8 (or any
successor provision) under the Exchange Act.
2.5 NOTICE
OF STOCKHOLDERS’ MEETINGS
Whenever
stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall
state the place, if any, date and hour of the meeting, the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
meeting, the record date for determining the stockholders entitled
to vote at the meeting, if such date is different from the record
date for determining stockholders entitled to notice of the
meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Except as otherwise
provided in the DGCL, the certificate of incorporation or these
bylaws, the written notice of any meeting of stockholders shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting as of the record date for determining the stockholders
entitled to notice of the meeting.
2.6 QUORUM
The
holders of a majority of the voting power of the issued and
outstanding shares of the corporation entitled to vote, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the stockholders, unless
otherwise required by law, the certificate of incorporation, these
bylaws or the rules of any applicable stock exchange. Where a
separate vote by a class or series or classes or series is
required, a majority of the voting power of the issued and
outstanding shares of such class or series or classes or series,
present in person or represented by proxy, shall constitute a
quorum entitled to take action with respect to that vote on that
matter, except as otherwise required by law, the certificate of
incorporation, these bylaws or the rules of any applicable stock
exchange.
Whether
or not a quorum is present at a meeting of stockholders, the
chairperson of the meeting shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been
transacted at the original meeting.
2.7 ADJOURNED
MEETING; NOTICE
When
a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned
meeting if the time, place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, a
notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting. If after the adjournment
a new record date for stockholders entitled to vote is fixed for
the adjourned meeting, the board of directors shall fix a new
record date for notice of such adjourned meeting in accordance with
Section 213(a) of the DGCL and Section 2.11 of these
bylaws, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as
of the record date fixed for notice of such adjourned
meeting.
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2.8 CONDUCT
OF BUSINESS
The
chairperson of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of business. The
chairperson of any meeting of stockholders shall be designated by
the board of directors; in the absence of such designation, the
chairperson of the board, if any, the chief executive officer (in
the absence of the chairperson) or the lead independent director,
if any, (in the absence of the chairperson of the board and the
chief executive officer), or in their absence any other executive
officer of the corporation, shall serve as chairperson of the
stockholder meeting.
2.9 VOTING
The
stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of
Section 2.11 of these bylaws, subject to Section 217
(relating to voting rights of fiduciaries, pledgors and joint
owners of stock) and Section 218 (relating to voting trusts
and other voting agreements) of the DGCL.
Except
as may be otherwise provided in the certificate of incorporation,
each stockholder shall be entitled to one vote for each share of
capital stock of the corporation held by such
stockholder.
Except as otherwise required by law, the
certificate of incorporation, these bylaws or the rules of any
applicable stock exchange, in all matters other than the election
of directors, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter (at a
meeting where a quorum is present) shall be the act of the
stockholders. Except as otherwise required by law, the certificate
of incorporation, these bylaws or the rules of any applicable stock
exchange, a nominee for director shall be elected to the board of
directors if a majority of the votes cast are in favor of such
nominee’s election; provided,
however, that, if the number of
nominees for director exceeds the number of directors to be
elected, directors shall be elected by a plurality of the votes of
the shares represented in person or by proxy at any meeting of
stockholders held to elect directors and entitled to vote on such
election of directors. Where a separate vote by a class or series
or classes or series is required, in all matters other than the
election of directors, the affirmative vote of the majority of the
voting power of shares of such class or series or classes or series
present in person or represented by proxy at the meeting (where a
quorum of such class or series is present) shall be the act of such
class or series or classes or series, except as otherwise provided
by law, the certificate of incorporation, these bylaws or the rules
of any applicable stock exchange.
2.10 STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless
otherwise provided by law or the certificate of incorporation, any
action required to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the
holders of issued and outstanding shares of the corporation having
not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and shall be
delivered to the corporation by delivery to its registered office
in the State of Delaware, its principal executive offices, or an
officer or agent of the corporation having custody of the book in
which proceedings of meetings of stockholders are recorded.
Delivery made to the corporation’s registered office shall be
by hand or by certified or registered mail, return receipt
requested. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in
writing.
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2.11
RECORD DATES
In
order that the corporation may determine the stockholders entitled
to notice of 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 the board of
directors so fixes a date, such date shall also be the record date
for determining the stockholders entitled to vote at such meeting
unless the board of directors determines, at the time it fixes such
record date, that a later date on or before the date of the meeting
shall be the date for making such determination.
If
no record date is fixed by the board of directors, the record date
for determining stockholders entitled to notice of and 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 determination of
stockholders entitled to vote at the adjourned meeting, and in such
case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as
that fixed for determination of stockholders entitled to vote in
accordance with the provisions of Section 213 of the DGCL and
this Section 2.11 at the adjourned
meeting.
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.
2.12 PROXIES
Each
stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by
proxy authorized by an instrument in writing or by a transmission
permitted by law and filed in accordance with the procedure
established for the meeting, 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. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the
provisions of Section 212 of the DGCL. A written proxy may be
in the form of a telegram, cablegram, or other means of electronic
transmission which sets forth or is submitted with information from
which it can be determined that the telegram, cablegram, or other
means of electronic transmission was authorized by the
stockholder.
2.13 LIST
OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the
meeting; provided,
however, if the record
date for determining the stockholders entitled to vote is less than
ten (10) days before the meeting date, the list shall reflect the
stockholders entitled to vote as of the 10th day before the meeting
date, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of
each stockholder. The corporation shall not be required to include
electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any
stockholder for any purpose germane to the meeting for a period of
at least ten (10) days prior to the meeting: (i) on a
reasonably accessible electronic network, provided that
the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary
business hours, at the corporation’s principal place of
business. In the event that the corporation determines to make the
list available on an electronic network, the corporation may take
reasonable steps to ensure that such information is available only
to stockholders of the corporation. If the meeting is to be held at
a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
examined by any stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list shall
also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network,
and the information required to access such list shall be provided
with the notice of the meeting. Such list shall presumptively
determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of
them.
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2.14 INSPECTORS
OF ELECTION
Before any meeting of stockholders, the board of
directors shall appoint an inspector or inspectors of election to
act at the meeting or its adjournment. The number of inspectors
shall be either one (1) or three (3). If any person appointed
as inspector fails to appear or fails or refuses to act, then the
chairperson of the meeting may, and upon the request of any
stockholder or a stockholder’s proxy shall, appoint a person
to fill that vacancy; provided further that, in any case, if no inspector or
alternate is able to act at a meeting of stockholders, the
chairperson of the meeting shall appoint at least one
(1) inspector to act at the meeting.
Each
inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his
or her ability. Such inspectors shall:
(i) determine
the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of
proxies;
(ii)
receive votes, ballots or
consents;
(iii)
hear and determine all challenges and
questions in any way arising in connection with the right to
vote;
(iv)
count and tabulate all votes or
consents;
(v)
determine when the polls shall
close;
(vi)
determine the result;
and
(vii)
do any other acts that may be proper
to conduct the election or vote with fairness to all
stockholders.
The inspectors of election shall perform their
duties impartially, in good faith, to the best of their ability and
as expeditiously as is practical. If there are three
(3) inspectors of election, the decision, act or certificate
of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the
inspectors of election is prima facie evidence of the facts stated
therein.
ARTICLE III - DIRECTORS
3.1 POWERS
The
business and affairs of the corporation shall be managed and all
such corporate powers shall be exercised by or under the direction
of the board of directors, except as may be otherwise provided in
the DGCL or the certificate of incorporation.
3.2 NUMBER
OF DIRECTORS
The board of directors shall consist of no fewer
than two (2) and no more than seven (7) members, each of whom shall
be a natural person. Unless the certificate of incorporation fixes
the number of directors, the number of directors shall be
determined from time to time by resolution of the board of
directors; provided,
however, that no decrease in
the number of directors shall have the effect of shortening the
term of any incumbent director.
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3.3 ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except
as provided in Section 3.4 and Section 3.11 of these bylaws,
each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which
elected and until such director’s successor is elected and
qualified or until such director’s earlier death, resignation
or removal. Directors need not be stockholders unless so required
by the certificate of incorporation or these bylaws. The
certificate of incorporation or these bylaws may prescribe other
qualifications for directors. The board of directors of the
corporation, at its first meeting after each annual meeting of
stockholders, shall choose a chairperson of the board of directors
from its members, and may select any member from time to time
thereafter to serve as chairperson of the board of
directors.
In
accordance with the provisions of the certificate of incorporation,
the directors of the corporation shall be divided into three (3)
classes.
3.4 RESIGNATION
AND VACANCIES
Any
director may resign at any time upon notice given in writing or by
electronic transmission to the corporation. A resignation is
effective when the resignation is delivered unless the resignation
specifies a later effective date or an effective date determined
upon the happening of an event or events. A resignation which is
conditioned upon the director failing to receive a specified vote
for reelection as a director may provide that it is irrevocable.
Unless otherwise provided in the certificate of incorporation or
these bylaws, when one or more directors 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
power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become
effective.
Unless
otherwise provided in the certificate of incorporation or these
bylaws, vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all
of the stockholders having the right to vote as a single class
shall be filled only by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. If
the directors are divided into classes, a person so elected by the
directors then in office to fill a vacancy or newly created
directorship shall hold office until the next election of the class
for which such director shall have been chosen and until his or her
successor shall have been duly elected and qualified.
If
at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or
any stockholder or an executor, administrator, trustee or guardian
of a stockholder, or other fiduciary entrusted with like
responsibility for the person or estate of a stockholder, may call
a special meeting of stockholders in accordance with the provisions
of the certificate of incorporation or these bylaws, or may apply
to the Delaware Court of Chancery for a decree summarily ordering
an election as provided in Section 211 of the
DGCL.
If,
at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a
majority of the whole board of directors (as constituted
immediately prior to any such increase), the Delaware Court of
Chancery may, upon application of any stockholder or stockholders
holding at least 10% of the voting power of the issued and
outstanding shares of the corporation having the right to vote for
such directors, summarily order an election to be held to fill any
such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of
Section 211 of the DGCL as far as applicable.
3.5 PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
The
board of directors may hold meetings, both regular and special,
either within or outside the State of Delaware.
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors, or any committee
designated by the board of directors, may participate in a meeting
of the board of directors, or any committee, by means of conference
telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
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3.6 REGULAR
MEETINGS
Regular
meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be
determined by the board of directors.
Notice
of the time and place of special meetings shall be:
(i) delivered
personally by hand, by courier or by telephone;
(ii)
sent by United States first-class
mail, postage prepaid;
(iii)
sent by facsimile;
or
(iv)
sent by electronic
mail,
directed
to each director at that director’s address, telephone
number, facsimile number or electronic mail address, as the case
may be, as shown on the corporation’s records.
If
the notice is (i) delivered personally by hand, by courier or
by telephone, (ii) sent by facsimile or (iii) sent by
electronic mail, it shall be delivered or sent at least 24 hours
before the time of the holding of the meeting. If the notice is
sent by United States mail, it shall be deposited in the United
States mail at least four (4) days before the time of the holding
of the meeting. Any oral notice may be communicated either to the
director or to a person at the office of the director who the
person giving notice has reason to believe will promptly
communicate such notice to the director. The notice need not
specify the place of the meeting (if the meeting is to be held at
the corporation’s principal executive office) nor the purpose
of the meeting.
3.8 QUORUM;
VOTING
At
all meetings of the board of directors, a majority of the total
authorized number of directors shall constitute a quorum for the
transaction of business. If a quorum is not present at any meeting
of the board of directors, then the directors present thereat may
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present. A meeting
at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for
that meeting.
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, the
certificate of incorporation or these bylaws.
If
the certificate of incorporation provides that one or more
directors 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 the directors shall refer to a majority or other
proportion of the votes of the directors.
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3.9
BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting
of the board of directors, or of any committee thereof, may be
taken without a meeting if all members of the boardof directors or
committee, as the case may be, consent thereto in writing or by
electronic transmission and the writing or writings or electronic
transmission or transmissions are filed with the minutes of
proceedings of the board of directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in
electronic form.
3.10
FEES AND COMPENSATION OF DIRECTORS
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, the board of directors shall have the authority to fix the
compensation of directors.
3.11 REMOVAL
OF DIRECTORS
Unless
otherwise provided in the certificate of incorporation, any
director may be removed from office by the stockholders of the
corporation only for cause.
No
reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such
director’s term of office.
ARTICLE IV - COMMITTEES
4.1 COMMITTEES
OF DIRECTORS
The
board of directors may designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The board of directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors or in these
bylaws, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to
(i) approve or adopt, or recommend to the stockholders, any
action or matter (other than the election or removal of directors)
expressly required by the DGCL to be submitted to stockholders for
approval, or (ii) adopt, amend or repeal any bylaw of the
corporation.
4.2 COMMITTEE
MINUTES
Each
committee shall keep regular minutes of its meetings and report the
same to the board of directors when requested by the board of
directors or required.
4.3 MEETINGS
AND ACTION OF COMMITTEES
Meetings
and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of:
(i) Section 3.5
(place of meetings and meetings by telephone);
(ii)
Section 3.6 (regular
meetings);
(iii)
Section 3.7 (special meetings and
notice);
(iv)
Section 3.8 (quorum;
voting);
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(v)
Section 7.5 (waiver of notice);
and
(vi)
Section 3.9 (action without a
meeting)
with
such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the board of directors
and its members.
(B) special
meetings of committees may also be called by resolution of the
board of directors; and
(C) notice
of special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all meetings
of the committee. The board of directors or a committee may adopt
rules for the government of any committee not inconsistent with the
provisions of these bylaws.
Any
provision in the certificate of incorporation providing that one or
more directors shall have more or less than one vote per director
on any matter shall apply to voting in any committee or
subcommittee, unless otherwise provided in the certificate of
incorporation or these bylaws.
4.4 SUBCOMMITTEES
Unless
otherwise provided in the certificate of incorporation, these
bylaws or the resolutions of the board of directors designating the
committee, a committee may create one or more subcommittees, each
subcommittee to consist of one or more members of the committee,
and delegate to a subcommittee any or all of the powers and
authority of the committee.
5.2 APPOINTMENT
OF OFFICERS
The
board of directors shall appoint the officers of the corporation,
except such officers as may be appointed in accordance with the
provisions of Sections 5.3 of these bylaws, subject to the
rights, if any, of an officer under any contract of employment.
Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or
removal. A failure to elect officers shall not dissolve or
otherwise affect the corporation.
5.3 SUBORDINATE
OFFICERS
The
board of directors may appoint, or empower the chief executive
officer of the corporation or, in the absence of a chief executive
officer, another officer, to appoint, such other officers and
agents as the business of the corporation may require. Each of such
officers and agents shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws
or as the board of directors may from time to time
determine.
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5.4 REMOVAL
AND RESIGNATION OF OFFICERS
Any
officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any
regular or special meeting of the board of directors or, except in
the case of an officer chosen by the board of directors, by any
officer upon whom such power of removal may be conferred by the
board of directors.
Any
officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation,
the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is
a party.
5.5 VACANCIES
IN OFFICES
Any
vacancy occurring in any office of the corporation shall be filled
by the board of directors or as provided in
Section 5.3.
5.6 CHAIRPERSON
OF THE BOARD OF DIRECTORS
The
chairperson of the board of directors shall be a member of the
board of directors and, if present, preside at meetings of the
board of directors and exercise and perform such other powers and
duties as may from time to time be assigned to him or her by the
board of directors or as may be prescribed by these
bylaws.
The chairperson shall be a director who is not
currently an officer of the corporation (other than service as a
director of the corporation) or a parent or subsidiary of the
corporation and is not otherwise currently employed by the
corporation or a parent or subsidiary of the corporation and shall
not hold any other office of the corporation unless the appointment
of the chairperson is approved by two-thirds of the members of the
board of directors then in office; provided,
however, that if there is no
chief executive officer or president of the corporation as a result
of the death, resignation or removal of such officer, then the
chairperson of the board of directors may also serve in an interim
capacity as the chief executive officer of the corporation until
the board of directors shall appoint a new chief executive officer
and, while serving in such interim capacity, shall have the powers
and duties prescribed in Section 5.7 of these
bylaws.
5.7 CHIEF
EXECUTIVE OFFICER
Subject
to the control of the board of directors and any supervisory powers
the board of directors may give to the chairperson of the board of
directors, the chief executive officer shall have general
supervision, direction, and control of the business and affairs of
the corporation and shall see that all orders and resolutions of
the board of directors are carried into effect. The chief executive
officer shall, together with any president or presidents of the
corporation, also perform all duties incidental to this office that
may be required by law and all such other duties as are properly
required of this office by the board of directors. The chief
executive officer shall serve as chairperson of and preside at all
meetings of the stockholders. In the absence of the chairperson of
the board of directors, the chief executive officer shall preside
at all meetings of the board of directors.
5.8 PRESIDENTS
Subject
to the control of the board of directors and any supervisory powers
the board of directors may give to the chairperson of the board of
directors, any president or presidents of the corporation shall,
together with the chief executive officer, have general
supervision, direction, and control of the business and affairs of
the corporation and shall see that all orders and resolutions of
the board of directors are carried into effect. A president shall
have such other powers and perform such other duties as from time
to time may be prescribed for him or her by the board of directors,
these bylaws, the chief executive officer, or the chairperson of
the board of directors.
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5.9 VICE
PRESIDENTS
In
the absence or disability of any president, the vice presidents, if
any, in order of their rank as fixed by the board of directors or,
if not ranked, a vice president designated by the board of
directors, shall perform all the duties of a president. When acting
as a president, the appropriate vice president shall have all the
powers of, and be subject to all the restrictions upon, that
president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed
for them respectively by the board of directors, these bylaws, the
chairperson of the board of directors, the chief executive officer
or, in the absence of a chief executive officer, any
president.
5.10 SECRETARY
The
secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the
board of directors may direct, a book of minutes of all meetings
and actions of directors, committees of directors, and
stockholders. The minutes shall show:
(i)
the time and place of each meeting;
(ii)
whether regular or special (and, if special, how authorized and the
notice given);
(iii)
the names of those present at directors’ meetings or
committee meetings;
(iv)
the number of shares present or represented at stockholders’
meetings; and
(v)
the proceedings thereof.
The
secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the
corporation’s transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a
duplicate share register showing:
(A)
the names of all stockholders and their addresses;
(B)
the number and classes of shares held by each;
(C)
the number and date of certificates evidencing such shares;
and
(D)
the number and date of cancellation of every certificate
surrendered for cancellation.
The
secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be
given by law or by these bylaws. The secretary shall keep the seal
of the corporation, if one be adopted, in safe custody and shall
have such other powers and perform such other duties as may be
prescribed by the board of directors or by these
bylaws.
5.11 CHIEF
FINANCIAL OFFICER
The
chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be
open to inspection by any director.
The
chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with
such depositories as the board of directors may designate. The
chief financial officer shall disburse the funds of the corporation
as may be ordered by the board of directors, shall render to the
chief executive officer or, in the absence of a chief executive
officer, any president and directors, whenever they request it, an
account of all his or her transactions as chief financial officer
and of the financial condition of the corporation, and shall have
other powers and perform such other duties as may be prescribed by
the board of directors or these bylaws.
The
chief financial officer may be the treasurer of the
corporation.
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5.12
TREASURER
The
treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of
the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and
shares. The books of account shall at all reasonable times be open
to inspection by any director.
The treasurer shall deposit all moneys and other valuables in the
name and to the credit of the corporation with such depositories as
the board of directors may designate. The treasurer shall disburse
the funds of the corporation as may be ordered by the board of
directors, shall render to the chief executive officer or, in the
absence of a chief executive officer, any president and the
directors, whenever they request it, an account of all his or her
transactions as treasurer and of the financial condition of the
corporation, and shall have other powers and perform such other
duties as may be prescribed by the board of directors or these
bylaws.
5.13 ASSISTANT
SECRETARY
The
assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of
the secretary’s inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as may be prescribed
by the board of directors or these bylaws.
5.14 ASSISTANT
TREASURER
The
assistant treasurer, or, if there is more than one, the assistant
treasurers, in the order determined by the board of directors (or
if there be no such determination, then in the order of their
election), shall, in the absence of the chief financial officer or
treasurer or in the event of the chief financial officer’s or
treasurer’s inability or refusal to act, perform the duties
and exercise the powers of the chief financial officer or
treasurer, as applicable, and shall perform such other duties and
have such other powers as may be prescribed by the board of
directors or these bylaws.
5.15
REPRESENTATION OF SHARES OF OTHER
CORPORATIONS
The
chairperson of the board of directors, the chief executive officer,
any president, any vice president, the treasurer, the secretary or
assistant secretary of this corporation, or any other person
authorized by the board of directors or the chief executive
officer, a president or a vice president, is authorized to vote,
represent, and exercise on behalf of this corporation all rights
incident to any and all shares or other equity interests of any
other corporation or entity standing in the name of this
corporation. The authority granted herein may be exercised either
by such person directly or by any other person authorized to do so
by proxy or power of attorney duly executed by such person having
the authority.
5.16
AUTHORITY AND DUTIES OF
OFFICERS
In
addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such
duties in the management of the business of the corporation as may
be designated from time to time by the board of
directors.
ARTICLE VI -
STOCK
6.1
STOCK CERTIFICATES; PARTLY PAID SHARES
The
shares of the corporation shall be represented by certificates,
provided that the board of directors may provide by resolution or
resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate
is surrendered to the corporation. Every holder of stock
represented by certificates shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairperson of
the board of directors or vice-chairperson of the board of
directors, or the chief executive officer and/or president or a
vice-president, and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation
representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the
same effect as if such person were such officer, transfer agent or
registrar at the date of issue. The corporation shall not have
power to issue a certificate in bearer form.
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The
corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to
be paid therefor. Upon the face or back of each stock certificate
issued to represent any such partly-paid shares, or upon the books
and records of the corporation in the case of uncertificated
partly-paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the
declaration of any dividend on fully-paid shares, the corporation
shall declare a dividend upon partly-paid shares of the same class,
but only upon the basis of the percentage of the consideration
actually paid thereon.
6.2 SPECIAL
DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more
than one class of stock or more than one series of any class, then
the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate that
the corporation shall issue to represent such class or series of
stock; provided,
however, that, except as
otherwise provided in Section 202 of the DGCL, in lieu of the
foregoing requirements there may be set forth on the face or back
of the certificate that the corporation shall issue to represent
such class or series of stock, a statement that the corporation
will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences and the relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Within a reasonable
time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or
stated on certificates pursuant to this Section 6.2 or
Sections 151, 156, 202(a) or 218(a) of the DGCL or with
respect to this Section 6.2 a statement that the corporation
will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights. Except as otherwise expressly provided
by law, the rights and obligations of the holders of uncertificated
stock and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be
identical.
6.3 LOST
CERTIFICATES
Except
as provided in this Section 6.3, no new certificates for
shares shall be issued to replace a previously issued certificate
unless the latter is surrendered to the corporation and cancelled
at the same time. The corporation may issue a new certificate of
stock or uncertificated shares in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or such owner’s legal
representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or
uncertificated shares.
6.4 DIVIDENDS
The
board of directors, subject to any restrictions contained in the
certificate of incorporation or applicable law, may declare and pay
dividends upon the shares of the corporation’s capital stock.
Dividends may be paid in cash, in property, or in shares of the
corporation’s capital stock.
The
board of directors may set apart out of any of the funds of the
corporation available for dividends a reserve or reserves for any
proper purpose and may abolish any such reserve. Such purposes
shall include but not be limited to equalizing dividends, repairing
or maintaining any property of the corporation, and meeting
contingencies.
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6.5 TRANSFER
OF STOCK
Transfers
of record of shares of stock of the corporation shall be made only
upon its books by the holders thereof, in person or by an attorney
duly authorized, and, subject to Section 6.3 of these bylaws,
if such stock is certificated, upon the surrender of a certificate
or certificates for a like number of shares, properly endorsed or
accompanied by proper evidence of succession, assignation or
authority to transfer.
6.6 STOCK
TRANSFER AGREEMENTS
The
corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more
classes or series of stock of the corporation to restrict the
transfer of shares of stock of the corporation of any one or more
classes or series owned by such stockholders in any manner not
prohibited by the DGCL.
6.7 REGISTERED
STOCKHOLDERS
The
corporation:
(i) shall
be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends and to
vote as such owner;
(ii) shall
be entitled to hold liable for calls and assessments the person
registered on its books as the owner of shares;
and
(iii) shall
not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of another person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of
Delaware.
Notice of any meeting of stockholders, if mailed,
is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at such stockholder’s address as
it appears on the corporation’s records. An affidavit of the
secretary or an assistant secretary of the corporation or of the
transfer agent or other agent of the corporation that the notice
has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated
therein.
7.2 NOTICE
BY ELECTRONIC TRANSMISSION
Without
limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the DGCL, the certificate
of incorporation or these bylaws, any notice to stockholders given
by the corporation under any provision of the DGCL, the certificate
of incorporation or these bylaws shall be effective if given by a
form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the corporation. Any such
consent shall be deemed revoked if:
(i) the
corporation is unable to deliver by electronic transmission two (2)
consecutive notices given by the corporation in accordance with
such consent; and
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(ii) such
inability becomes known to the secretary or an assistant secretary
of the corporation or to the transfer agent, or other person
responsible for the giving of notice.
However,
the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(i) if
by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive
notice;
(ii) if
by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive
notice;
(iii) if
by a posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A)
such posting and (B) the giving of such separate notice;
and
(iv) if
by any other form of electronic transmission, when directed to the
stockholder.
An affidavit of the secretary or an assistant
secretary or of the transfer agent or other agent of the
corporation that the notice has been given by a form of electronic
transmission shall, in the absence of fraud,
be prima facie evidence of the facts stated
therein.
The term “electronic
transmission” means any
form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an
automated process.
Notice
by a form of electronic transmission shall not apply with respect
to Sections 164, 296, 311, 312 or 324 of the DGCL.
7.4 NOTICE
TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
Whenever
notice is required to be given, under the DGCL, the certificate of
incorporation or these bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be
taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as
if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a
certificate under the DGCL, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
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7.5
WAIVER OF NOTICE
Whenever notice is
required to be given under any provision of the DGCL, the
certificate of incorporation or these bylaws, a written waiver,
signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or
after the time of the event for which notice is to be given, shall
be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any
written waiver of notice or any waiver by electronic transmission
unless so required by the certificate of incorporation or these
bylaws.
ARTICLE
VIII - FORUM FOR ADJUDICATION OF DISPUTES
Unless
the corporation consents in writing to the selection of an
alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the
corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of
the corporation to the corporation or the corporation’s
stockholders, (iii) any action asserting a claim arising pursuant
to any provision of the DGCL, or (iv) any action asserting a claim
governed by the internal affairs doctrine shall be a state or
federal court located within the State of Delaware, in all cases
subject to the court’s having personal jurisdiction over the
indispensable parties named as defendants. Any person or entity
purchasing or otherwise acquiring any interest in shares of capital
stock of the corporation shall be deemed to have notice of and
consented to the provisions of this bylaw.
ARTICLE
IX - INDEMNIFICATION
9.1
INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY
PROCEEDINGS
Subject
to the other provisions of this Article IX, the corporation shall
indemnify, to the fullest extent permitted by the DGCL, as now or
hereafter in effect, any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”) (other
than an action by or in the right of the corporation) by reason of
the fact that such person is or was a director or officer of the
corporation or any predecessor of the corporation, or is or was a
director or officer of the corporation serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such Proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe such person’s conduct was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be
in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that such person’s conduct was
unlawful.
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9.2
INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE
RIGHT OF THE CORPORATION
Subject
to the other provisions of this Article IX, the corporation
shall indemnify, to the fullest extent permitted by the DGCL, as
now or hereafter in effect, any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation or any
predecessor of the corporation, or is or was a director or officer
of the corporation serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, employee benefit plan, trust or other
enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation;
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
9.3 SUCCESSFUL
DEFENSE
To
the extent that a present or former director or officer of the
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in
Section 9.1 or Section 9.2, or in defense of any claim,
issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith.
9.4 INDEMNIFICATION
OF OTHERS
Subject
to the other provisions of this Article IX, the corporation
shall have power to indemnify its employees and agents to the
extent not prohibited by the DGCL or other applicable law. The
board of directors shall have the power to delegate to such person
or persons as the board shall in its discretion determine the
determination of whether employees or agents shall be
indemnified.
9.5 ADVANCE
PAYMENT OF EXPENSES
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(i) for
which payment has actually been made to or on behalf of such person
under any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount
paid;
(ii) for
an accounting or disgorgement of profits pursuant to
Section 16(b) of the Exchange Act, or similar provisions of
federal, state or local statutory law or common law, if such person
is held liable therefor (including pursuant to any settlement
arrangements);
(iii) for
any reimbursement of the corporation by such person of any bonus or
other incentive-based or equity-based compensation or of any
profits realized by such person from the sale of securities of the
corporation, as required in each case under the Exchange Act
(including any such reimbursements that arise from an accounting
restatement of the corporation pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”), or the payment to
the corporation of profits arising from the purchase and sale by
such person of securities in violation of Section 306 of the
Sarbanes-Oxley Act), if such person is held liable therefor
(including pursuant to any settlement
arrangements);
(iv) initiated
by such person, including any Proceeding or any part of any
Proceeding (other than a suit initiated by such person against the
corporation for indemnity or advancement of expenses related to a
Proceeding) initiated by such person against the corporation or its
directors, officers, employees, agents or other indemnitees, unless
(a) the board of directors authorized the Proceeding (or the
relevant part of the Proceeding) prior to its initiation,
(b) the corporation provides the indemnification, in its sole
discretion, pursuant to the powers vested in the corporation under
applicable law, (c) otherwise required to be made under
Section 9.7, or (d) otherwise required by applicable law;
or
(v) if
prohibited by applicable law; provided,
however, that if any provision
or provisions of this Article IX shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions
of this Article IX (including, without limitation, each portion of
any paragraph or clause containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Article IX (including, without limitation,
each such portion of any paragraph or clause containing any such
provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or
unenforceable.
9.7 DETERMINATION;
CLAIM
If a claim for indemnification or advancement of
expenses under this Article IX is not paid in full within
ninety (90) days after receipt by the corporation of the
written request therefor, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall
be thirty (30) days, the claimant (“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 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 the Indemnitee has not met the applicable
standard for indemnification set forth in the DGCL. 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 the applicable standard for
indemnification set forth in the DGCL. 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 set forth in the DGCL, 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, shall create a
presumption that the Indemnitee has not met the applicable standard
of conduct 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 IX or otherwise shall be on the
corporation.
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9.8 NON-EXCLUSIVITY
OF RIGHTS
The
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article IX shall not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the certificate of
incorporation, any statute, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another
capacity while holding such office, it being the policy of the
corporation that indemnification of the persons specified in
Section 9.1 and Section 9.2 of this Article IX shall be made to the
fullest extent permitted by law. The provisions of this Article IX
shall not be deemed to preclude the indemnification of any person
who is not specified in Section 9.1 or Section 9.2 of this Article
IX but whom the corporation has the power or obligation to
indemnify under the provisions of the DGCL, or otherwise. The
corporation is specifically authorized to enter into individual
contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advancement of expenses, to
the fullest extent not prohibited by the DGCL or other applicable
law.
9.9
INSURANCE
The
corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the corporation
would have the power to indemnify such person against such
liability under the provisions of the DGCL.
9.10 SURVIVAL
The
rights to indemnification and advancement of expenses conferred by
this Article IX shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
9.12 CERTAIN
DEFINITIONS
For purposes of this Article IX, references
to the “corporation” shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, employees
or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, shall
stand in the same position under the provisions of this
Article IX with respect to the resulting or surviving
corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
For purposes of this Article IX, references to
“other
enterprises” shall
include employee benefit plans; references to
“fines” shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references
to “serving at the request of the
corporation” shall
include any service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best
interests of the corporation” as referred to in this
Article IX.
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ARTICLE X - GENERAL MATTERS
10.1 EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS
Except
as otherwise provided by law, the certificate of incorporation or
these bylaws, the board of directors may authorize any officer or
officers, or agent or agents, to enter into any contract or execute
any document or instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of
directors or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or for any
amount.
10.2 FISCAL
YEAR
The
fiscal year of the corporation shall be fixed by resolution of the
board of directors and may be changed by the board of
directors.
10.4 CONSTRUCTION;
DEFINITIONS
Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the DGCL
shall govern the construction of these bylaws. Without limiting the
generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term
“person” includes both a corporation and a natural
person.
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YUMA ENERGY, INC.
CERTIFICATE OF AMENDMENT OF BYLAWS
The
undersigned hereby certifies that he or she is the duly elected,
qualified, and acting Secretary or Assistant Secretary of Yuma
Energy, Inc., a Delaware corporation, and that the foregoing
bylaws, comprising 26 pages, were amended and restated on October
26, 2016 by the corporation’s board of
directors.
IN WITNESS WHEREOF,
the undersigned has hereunto set his
or her hand this 26th day of
October, 2016.
|
/s/
James J. Jacobs
|
James
J. Jacobs, Secretary
|
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