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8-K - PLATINUM ENERGY RESOURCES INC | v172469_8k.htm |
EX-16.1 - PLATINUM ENERGY RESOURCES INC | v172469_ex16-1.htm |
EXHIBIT
99.1
AMENDED
AND RESTATED
BY
LAWS
OF
PLATINUM
ENERGY RESOURCES, INC.
(Adopted
January 22, 2010)
ARTICLE
I
OFFICES
1.1
Registered Office. The registered office of Platinum Energy Resources, Inc.(the
"Corporation") in the State of Delaware shall be established and maintained at
615 S. DuPont Highway, Kent County, Dover, Delaware and National Corporate
Research, Ltd. shall be the registered agent of the corporation in charge there
of.
1.2 Other
Offices. The Corporation may also have offices at such other places both within
and without the State of Delaware as the board of directors of the Corporation
(the "Board of Directors") may from time to time determine or the business of
the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
2.1 Place
of Meetings. All meetings of the stockholders shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
2.2
Annual Meetings. The annual meeting of stockholders shall be held on such date
and at such time as may be fixed by the Board of Directors and stated in the
notice of the meeting, for the purpose of electing directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these Bylaws (the "Bylaws").
Written
notice of an annual meeting stating the place, date and hour of the meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the annual
meeting.
To be
properly brought before the annual meeting, business must be either (i)
specified in the notice of annual meeting (or any supplement or amendment there
to) given by or at the direction of the Board of Directors, (ii) otherwise
brought before the annual meeting by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the annual meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty (60) days nor more than ninety (90) days prior to the meeting; provided,
however, that in the event that less than seventy (70) days notice or prior
public disclosure of the date of the annual meeting is given or made to
stockholders, notice by a stockholder, to be timely, must be received no later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made, whichever first occurs. A stockholder's notice to the
Secretary shall set forth (a) as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, and (ii) any material interest of the
stockholder in such business, and (b) as to the stockholder giving the notice
(i) the name and record address of the stockholder, and (ii) the class, series
and number of shares of capital stock of the Corporation which are beneficially
owned by the stockholder. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II, Section 2. The
officer of the Corporation presiding at an annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that business was not
properly brought before the annual meeting in accordance with the provisions of
this Article II, Section 2, and if such officer should so determine, such
officer shall so declare to the annual meeting and any such business not
properly brought before the meeting shall not be transacted.
2.3
Special Meetings. Special meetings of the stockholders, unless otherwise
prescribed by statute or by the Certificate of Incorporation of the Corporation
(the "Certificate of Incorporation"), may only be called by a majority of the
entire Board of Directors, or the Chief Executive Officer or the Chairman, and
shall be called by the Secretary at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the Corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Unless
otherwise provided by law, written notice of a special meeting of stockholders,
stating the time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than ten (10) or
more than sixty (60) days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
2.4
Quorum. The holders of a majority of the capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business, except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the holders of a majority of the votes entitled
to be cast by the stockholders entitled to vote thereat, presenting person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
2.5
Organization. The Chairman of the Board of Directors shall act as chairman of
meetings of the stockholders. The Board of Directors may designate any other
officer or director of the Corporation to act as chairman of any meeting in the
absence of the Chairman of the Board of Directors, and the Board of Directors
may further provide for determining who shall act as chairman of any
stockholders meeting in the absence of the Chairman of the Board of Directors
and such designee.
The
Secretary of the Corporation shall act as secretary of all meetings of the
stockholders, but in the absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
2.6
Voting. Unless otherwise required by law, the Certificate of Incorporation or
these Bylaws, any question (other than the election of directors) brought before
any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat. At all meetings
of stockholders for the election of directors, a plurality of the votes cast
shall be sufficient to elect. Each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder, unless otherwise
provided by the Certificate of Incorporation. Each stockholder entitled to vote
at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize any person or persons to act
for him by proxy. All proxies shall be executed in writing and shall be filed
with the Secretary of the Corporation not later than the day on which exercised.
No proxy shall be voted or acted upon after three (3) years from its date,
unless the proxy provides for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
2.7
Action of Shareholders without Meeting. Unless otherwise provided by 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 outstanding stock 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 place of business
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.
2.8
Voting List. 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, arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the election, either at a place within the city, town or village
where the election is to be held, which place shall be specified in the notice
of the meeting, or, if not specified, at the place where said meeting is to
beheld. The list shall be produced and kept at the time and place of election
during the whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
2.9 Stock
Ledger. The stock ledger of the Corporation shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list required by
Section 2.8 of this Article II or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
2.10
Adjournment. Any meeting of the stockholders, including one at which directors
are to be elected, may be adjourned for such periods as the presiding officer of
the meeting or the stockholders present in person or by proxy and entitled to
vote shall direct.
2.11
Ratification. Any transaction questioned in any stockholders' derivative suit,
or any other suit to enforce alleged rights of the Corporation or any of its
stockholders, on the ground of lack of authority, defective or irregular
execution, adverse interest of any director, officer or stockholder,
nondisclosure, miscomputation or the application of improper principles or
practices of accounting may be approved, ratified and confirmed before or after
judgment by the Board of Directors or by the holders of Common Stock and, if so
approved, ratified or confirmed, shall have the same force and effect as if the
questioned transaction had been originally duly authorized, and said approval,
ratification or confirmation shall be binding upon the Corporation and all of
its stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
2.12
Judges. All votes by ballot at any meeting of stockholders shall be conducted by
two judges appointed for the purpose either by the directors or by the meeting.
The judges shall decide upon the qualifications of voters, count the votes and
declare the result.
ARTICLE
III
DIRECTORS
3.1
Powers; Number; Qualifications. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of Incorporation. The
number of directors which shall constitute the Board of Directors shall be not
less than one (1) nor more than nine (9). The exact number of directors
shall be fixed from time to time, within the limits specified in this Article
III Section 3.1 or in the Certificate of Incorporation, by the Board of
Directors. Directors need not be stockholders of the Corporation. The Board
shall be divided into Classes as more fully described in the Certificate of
Incorporation.
3.2
Election; Term of Office; Resignation; Removal; Vacancies. Each director shall
hold office until the next annual meeting of stockholders at which his Class
stands for election or until such director's earlier resignation, removal from
office, death or incapacity. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, and each director so chosen shall hold
office until the expiration of his term of office and until such director's
successor shall be duly elected and shall qualify, or until such director's
earlier resignation, removal from office, death or incapacity. A director
may automatically be removed from office after missing three (3) consecutive
meetings of the board, unless such absence is for medical reasons.
3.3
Nominations. Nominations of persons for election to the Board of Directors of
the Corporation at a meeting of stockholders of the Corporation may be made at
such meeting by or at the direction of the Board of Directors, by any committee
or persons appointed by the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Article III,
Section
3.3. Such
nominations by any stockholder shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than sixty (60) days nor more than ninety
(90) days prior to the meeting; provided, however, that in the event that less
than seventy (70) days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder, to be
timely, must be received no later than the close of business on the tenth
(10th)day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first occurs. Such
stockholder's notice to the Secretary shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
(a)the name, age, business address and residence address of the person, (b) the
principal occupation or employment of the person, (c) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (d) any other information relating to the person that is required to
be disclosed in solicitations for proxies for election of directors pursuant to
the Rules and Regulations of the Securities and Exchange Commission under
Section 14 of the Securities Exchange Act of 1934, as amended, and (ii) as to
the stockholder giving the notice (a) the name and record address of the
stockholder, and (b) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation. No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth herein. The officer of the Corporation presiding
at an annual meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
3.4
Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware. The first
meeting of each newly elected Board of Directors shall be held immediately after
and at the same place as the meeting of the stockholders at which it is elected
and no notice of such meeting shall be necessary to the newly elected directors
in order to legally constitute the meeting, provided a quorum shall be present.
Regular meetings of the Board of Directors may be held without notice at such
time and place as shall from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called by the Chief
Executive Officer or a majority of the entire Board of Directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the
meeting, by telephone, facsimile, telegram or e-mail on twenty-four (24) hours
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
3.5
Quorum. Except as may be otherwise specifically provided by law, the Certificate
of Incorporation or these Bylaws, at all meetings of the Board of Directors or
any committee thereof, a majority of the entire Board of Directors or such
committee, as the case may be, shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors or of any
committee thereof, a majority of the directors present there at may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
3.6
Organization of Meetings. The Board of Directors shall elect one of its members
to be Chairman of the Board of Directors. The Chairman of the Board of Directors
shall lead the Board of Directors in fulfilling its responsibilities as set
forth in these By-Laws, including its responsibility to oversee the performance
of the Corporation, and shall determine the agenda and perform all other duties
and exercise all other powers which are or from time to time may be delegated to
him or her by the Board of Directors.
Meetings
of the Board of Directors shall be presided over by the Chairman of the Board of
Directors, or in his absence, by the Chief Executive Officer (if he is a
director), or in the absence of the Chairman of the Board of Directors and the
Chief Executive Officer by such other person as the Board of Directors may
designate or the members present may select.
3.7
Actions of Board of Directors Without 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 Board of
Directors or of such committee, as the case may be, consent thereto in writing,
and the writing or writings are filled with the minutes of proceedings of the
Board of Directors or committee.
3.8
Removal of Directors by Stockholders. The entire Board of Directors or any
individual Director may be removed from office with cause by a majority vote of
the holders of the outstanding shares then entitled to vote at an election of
directors. In case the Board of Directors or any one or more Directors be so
removed, new Directors may be elected at the same time for the unexpired portion
of the full term of the Director or Directors so removed.
3.9
Resignations. Any Director may resign at any time by submitting his written
resignation to the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect at the time of its receipt by the Corporation
unless another time be fixed in the resignation, in which case it shall become
effective at the time so fixed. The acceptance of a resignation shall not be
required to make it effective.
3.10
Committees. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. 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
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided by law and in
the resolution of the Board of Directors establishing such committee, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution
or amending the Bylaws of the Corporation; and, unless the resolution expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock or to adopt a certificate of
ownership and merger. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
3.11
Compensation. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed amount (in cash
or other form of consideration) for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation there for. Members of special or standing committees maybe allowed
like compensation for attending committee meetings.
3.12
Interested Directors. No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more
of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if (i) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be
less than a quorum; or (ii) the material facts as to his or their relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
3.13
Meetings by Means of Conference Telephone. Members of the Board of Directors or
any committee designed by the Board of Directors may participate in a meeting of
the Board of Directors or of a committee of the Board of Directors by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this subsection shall constitute presence in person at
such meeting.
ARTICLE
IV
OFFICERS
4.1
General. The officers of the Corporation shall be elected by the Board of
Directors and may consist of: a Chairman of the Board, Vice Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, President, Secretary
and Treasurer. The Board of Directors, in its discretion, may also elect one or
more Vice Presidents (including Executive Vice Presidents and Senior Vice
Presidents), Assistant Secretaries, Assistant Treasurers, a Controller and such
other officers as in the judgment of the Board of Directors may be necessary or
desirable. Any number of offices may be held by the same person and more than
one person may hold the same office, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws. The officers of the Corporation
need not be stockholders of the Corporation, nor need such officers be directors
of the Corporation.
4.2
Election. The Board of Directors at its first meeting held after each annual
meeting of stockholders shall elect the officers of the Corporation who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier resignation or removal. Except as
otherwise provided in this Article IV, any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries of all officers who are
directors of the Corporation shall be fixed by the Board of
Directors.
4.3
Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers
of notice of meeting, consents and other instruments relating to securities
owned by the Corporation may be executed in the name of and on behalf of the
Corporation by the Chief Executive Officer or any Vice President, and any such
officer may, in the name and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
4.4 Chief
Executive Officer. Subject to the provisions of these Bylaws and to the
direction of the Board of Directors, the Chief Executive Officer shall have
ultimate authority for decisions relating to the general management and control
of the affairs and business of the Corporation and shall perform such other
duties and exercise such other powers which are or from time to time may be
delegated to him by the Board of Directors or these Bylaws, all in accordance
with basic policies as established by and subject to the oversight of the Board
of Directors.
4.5
President. Subject to the provisions of these Bylaws and to the direction of the
Board of Directors, the President shall, subject to the control and direction of
the Board of Directors, have and perform such powers and duties as may be
prescribed by these By-Laws or from time to time be determined by the Board of
Directors.
4.6 Chief
Financial Officer. The Chief Financial Officer shall have general supervision,
direction and control of the financial affairs of the Corporation and shall
perform such other duties and exercise such other powers which are or from time
to time may be delegated to him by the Board of Directors or these Bylaws, all
in accordance with basic policies as established by and subject to the oversight
of the Board of Directors. In the absence of a named Treasurer, the Chief
Financial Officer shall also have the powers and duties of the Treasurer as
hereinafter set forth and shall be authorized and empowered to sign as Treasurer
in any case where such officer's signature is required.
4.7 Vice
Presidents. At the request of the Chief Executive Officer, or in the absence of
the Chief Executive Officer, or in the event of his or her inability or refusal
to act, the Vice President or the Vice Presidents if there is more than one (in
the order designated by the Board of Directors) shall perform the duties of the
Chief Executive Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon such office. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors
from time to time may prescribe. If there be no Vice President, the Board of
Directors shall designate the officer of the Corporation who, in the absence of
the Chief Executive Officer or in the event of the inability or refusal of such
officer to act, shall perform the duties of such office, and when so acting,
shall have all the powers of and be subject to all the restrictions upon such
office.
4.8
Secretary. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties
for the standing committees when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as maybe prescribed by
the Board of Directors or the Chief Executive Officer, under whose supervision
the Secretary shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, then any Assistant Secretary shall perform
such actions. If there be no Assistant Secretary, then the Board of Directors or
the Chief Executive Officer may choose another officer to cause such notice to
be given. The Secretary shall have custody of the seal of the Corporation
and the Secretary or any Assistant Secretary, if there be one, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required bylaw to be
kept or filed are properly kept or filed, as the case may be.
4.9
Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
4.10
Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the Chief Executive Officer, any Vice President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.11
Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, any Vice President, if there be
one, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
4.11
Controller. The Controller shall establish and maintain the accounting records
of the Corporation in accordance with generally accepted accounting principles
applied on a consistent basis, maintain proper internal control of the assets of
the Corporation and shall perform such other duties as the Board of Directors,
the Chief Executive Officer or any Vice President of the Corporation may
prescribe.
4.12
Other Officers. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
4.13
Vacancies. The Board of Directors shall have the power to fill any vacancies in
any office occurring from whatever reason.
4.14
Resignations. Any officer may resign at any time by submitting his written
resignation to the Corporation. Such resignation shall take effect at the time
of its receipt by the Corporation, unless another time be fixed in the
resignation, in which case it shall become effective at the time so fixed. The
acceptance of a resignation shall not be required to make it
effective.
4.15
Removal. Subject to the provisions of any employment agreement approved by the
Board of Directors, any officer of the Corporation may be removed at anytime,
with or without cause, by the Board of Directors.
ARTICLE
V
CAPITAL
STOCK
5.1 Form
of Certificates. Every holder of stock in the Corporation shall been titled to
have a certificate signed, in the name of the Corporation (i) by the Chief
Executive Officer or a Vice President, and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
5.2
Signatures. Any or all of the signatures on the certificate may be a facsimile,
including, but not limited to, signatures of officers of the Corporation and
countersignatures of a transfer agent or registrar. In case an officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
5.3 Lost
Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
5.4
Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender of the
certificate there for, which shall be canceled before a new certificate shall be
issued. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transactions upon its books,
unless the Corporation has a duty to inquire as to adverse claims with respect
to such transfer which has not been discharged. The Corporation shall have no
duty to inquire into adverse claims with respect to such transfer unless (a) the
Corporation has received a written notification of an adverse claim at a time
and in a manner which affords the Corporation a reasonable opportunity to act on
it prior to the issuance of a new, reissued or re-registered share certificate
and the notification identifies the claimant, the registered owner and the issue
of which the share or shares is a part and provides an address for
communications directed to the claimant; or (b) the Corporation has required and
obtained, with respect to a fiduciary, a copy of a will, trust, indenture,
articles of co-partnership, Bylaws or other controlling instruments, for a
purpose other than to obtain appropriate evidence of the appointment or
incumbency of the fiduciary, and such documents indicate, upon reasonable
inspection, the existence of an adverse claim. The Corporation may discharge any
duty of inquiry by any reasonable means, including notifying an adverse claimant
by registered or certified mail at the address furnished by him or, if there be
no such address, at his residence or regular place of business that the security
has been presented for registration of transfer by a named person, and that the
transfer will be registered unless within thirty days from the date of mailing
the notification, either (a) an appropriate restraining order, injunction or
other process issues from a court of competent jurisdiction; or (b) an indemnity
bond, sufficient in the Corporation's judgment to protect the Corporation and
any transfer agent, registrar or other agent of the Corporation involved from
any loss which it or they may suffer by complying with the adverse claim, is
filed with the Corporation.
5.5
Fixing Record Date. In order that the Corporation may determine the stockholders
entitled to notice or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or 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 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, nor more
than ten (10) days after the date upon which the resolution fixing the record
date of action without a meeting is adopted by the Board of Directors, nor more
than sixty (60) days prior to any other action. If no record date is
fixed:
(a)The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
(b)The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the first date on which a signed written
consent is delivered to the Corporation; and
(c)The
record date for determining stockholders for any other purpose shall beat the
close of business on the day on which the Board of Directors adopts there
solution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
5.6
Registered Stockholders. Prior to due presentment for transfer of any share or
shares, the Corporation shall treat the registered owner thereof as the person
exclusively entitled to vote, to receive notifications and to all other benefits
of ownership with respect to such share or shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State
Delaware.
ARTICLE
VI
NOTICES
6.1 Form
of Notice. Notices to directors and stockholders other than notices to directors
of special meetings of the board of Directors which may be given by any means
stated in Article III, Section 3.4, shall be in writing and delivered personally
or mailed to the directors or stockholders at their addresses appearing on the
books of the Corporation. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to directors may also be given by
telegram.
6.2
Waiver of Notice. Whenever any notice is required to be given under the
provisions of law or the Certificate of Incorporation or by these Bylaws of the
Corporation, a written waiver, signed by the person or persons entitled to
notice, whether before or after the time stated therein, 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, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation.
ARTICLE
VII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
7.1 The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative(other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
7.2 The
Corporation shall indemnify any person who was or is a party, or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees)actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
7.3 To
the extent that a director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 7.1 or 7.2 of this Article, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
7.4 Any
indemnification under sections 7.1 or 7.2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in such section. Such determination shall be
made:
(a)By the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or
(b)If
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or
(c)By the
stockholders.
7.5
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
7.6 The
indemnification and advancement of expenses provided by, or granted pursuant to
the other sections of this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
7.7 The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article.
7.8 For
purposes of this Article, 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 serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation of its separate existence had
continued.
7.9 For
purposes of this Article, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any 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 he 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.
7.10 The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
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.
ARTICLE
VIII
GENERAL
PROVISIONS
8.1
Reliance on Books and Records. Each Director, each member of any committee
designated by the Board of Directors, and each officer of the Corporation,
shall, in the performance of his duties, be fully protected in relying in good
faith upon the books of account or other records of the Corporation, including
reports made to the Corporation by any of its officers, by an independent
certified public accountant, or by an appraiser selected with reasonable
care.
8.2
Dividends. Subject to the provisions of the Certificate of Incorporation, if
any, dividends upon the capital stock of the Corporation may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
8.3
Checks. All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other persons as the Board of
Directors may from time to time designate.
8.4
Fiscal Year. The fiscal year of the Corporation shall be as determined by the
Board of Directors. If the Board of Directors shall fail to do so, the fiscal
year shall be the calendar year.
8.5 Seal.
The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words "Corporate Seal, Delaware". The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any manner reproduced.
8.6
Amendments. The original or other Bylaws may be adopted, amended or repealed by
the stockholders entitled to vote thereon at any regular or special meeting or,
if the Certificate of Incorporation so provides, by the Board of Directors. The
fact that such power has been so conferred upon the Board of Directors shall not
divest the stockholders of the power nor limit their power to adopt, amend or
repeal Bylaws.
8.7
Interpretation of Bylaws. All words, terms and provisions of these By laws shall
be interpreted and defined by and in accordance with the General Corporation Law
of the State of Delaware, as amended, and as amended from time to time
hereafter.