Attached files
file | filename |
---|---|
S-1/A - FORM S-1/A - CSI Compressco LP | h75396a3sv1za.htm |
EX-4.1 - EX-4.1 - CSI Compressco LP | h75396a3exv4w1.htm |
EX-10.2 - EX-10.2 - CSI Compressco LP | h75396a3exv10w2.htm |
EX-23.1 - EX-23.1 - CSI Compressco LP | h75396a3exv23w1.htm |
EX-10.1 - EX-10.1 - CSI Compressco LP | h75396a3exv10w1.htm |
EX-10.3 - EX-10.3 - CSI Compressco LP | h75396a3exv10w3.htm |
EX-21.1 - EX-21.1 - CSI Compressco LP | h75396a3exv21w1.htm |
Exhibit 3.4
FORM OF
FIRST AMENDED AND RESTATED
FIRST AMENDED AND RESTATED
BYLAWS
OF
Compressco Partners GP Inc.
A Delaware Corporation
Date of Adoption:
[April ___], 2011
COMPRESSCO PARTNERS GP INC.
FIRST AMENDED AND RESTATED BYLAWS
Table of Contents
Page | ||||
ARTICLE I |
||||
OFFICES |
||||
Section 1.01 Registered Office |
1 | |||
Section 1.02 Other Offices |
1 | |||
ARTICLE II |
||||
STOCKHOLDERS |
||||
Section 2.01 Place of Meetings |
1 | |||
Section 2.02 Quorum; Adjournment of Meetings |
1 | |||
Section 2.03 Annual Meetings |
2 | |||
Section 2.04 Special Meetings |
2 | |||
Section 2.05 Record Date |
2 | |||
Section 2.06 Notice of Meetings |
3 | |||
Section 2.07 Stock List |
3 | |||
Section 2.08 Proxies |
3 | |||
Section 2.09 Voting; Elections; Inspectors |
4 | |||
Section 2.10 Order of Business |
4 | |||
Section 2.11 Treasury Stock |
5 | |||
Section 2.12 Action Without Meeting |
5 | |||
Section 2.13 Meetings by Remote Communication |
5 | |||
ARTICLE III |
||||
BOARD OF DIRECTORS |
||||
Section 3.01 Power; Number; Term of Office |
5 | |||
Section 3.02 Quorum |
6 | |||
Section 3.03 Place of Meetings; Order of Business |
6 | |||
Section 3.04 First Meeting |
6 | |||
Section 3.05 Regular Meetings |
6 | |||
Section 3.06 Special Meetings |
6 | |||
Section 3.07 Removal |
6 | |||
Section 3.08 Vacancies; Increases in the Number of Directors |
7 | |||
Section 3.09 Compensation |
7 | |||
Section 3.10 Action Without a Meeting; Telephone Conference Meeting |
7 | |||
ARTICLE IV |
||||
COMMITTEES |
||||
Section 4.01 Designation; Powers |
8 | |||
Section 4.02 Procedure; Meetings; Quorum |
8 |
i
Page | ||||
Section 4.03 Substitution and Removal of Members; Vacancies |
8 | |||
ARTICLE V |
||||
OFFICERS |
||||
Section 5.01 Number, Titles and Term of Office |
8 | |||
Section 5.02 Salaries |
9 | |||
Section 5.03 Removal |
9 | |||
Section 5.04 Vacancies |
9 | |||
Section 5.05 Powers and Duties of the President |
9 | |||
Section 5.06 Powers and Duties of the Vice Presidents |
9 | |||
Section 5.07 Powers and Duties of the Secretary |
9 | |||
Section 5.08 Powers and Duties of the Treasurer |
10 | |||
Section 5.09 Action with Respect to Securities of Other Corporations |
10 | |||
ARTICLE VI |
||||
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS |
||||
Section 6.01 Right to Indemnification |
10 | |||
Section 6.02 Indemnification of Employees and Agents |
11 | |||
Section 6.03 Right of Claimant to Bring Suit |
11 | |||
Section 6.04 Nonexclusivity of Rights |
12 | |||
Section 6.05 Insurance |
12 | |||
Section 6.06 Savings Clause |
12 | |||
Section 6.07 Definitions |
12 | |||
ARTICLE VII |
||||
CAPITAL STOCK |
||||
Section 7.01 Certificates of Stock |
13 | |||
Section 7.02 Transfer of Shares |
13 | |||
Section 7.03 Ownership of Shares |
13 | |||
Section 7.04 Regulations Regarding Certificates |
13 | |||
Section 7.05 Lost or Destroyed Certificates |
14 | |||
ARTICLE VIII |
||||
MISCELLANEOUS PROVISIONS |
||||
Section 8.01 Fiscal Year |
14 | |||
Section 8.02 Notice and Waiver of Notice |
14 | |||
Section 8.03 Resignations |
14 | |||
Section 8.04 Facsimile Signatures |
15 | |||
Section 8.05 Reliance upon Books, Reports and Records |
15 | |||
Section 8.06 Interested Directors and Officers |
15 | |||
ARTICLE IX |
||||
AMENDMENTS |
||||
Section 9.01 Amendments |
16 |
ii
FIRST AMENDED AND RESTATED BYLAWS
OF
COMPRESSCO PARTNERS GP INC.
ARTICLE I
OFFICES
OFFICES
Section 1.01 Registered Office. The registered office of Compressco Partners GP Inc.
(the Corporation) required by the General Corporation Law of the State of Delaware to be
maintained in the State of Delaware, shall be the registered office named in the Certificate of
Incorporation of the Corporation, or such other office as may be designated from time to time by
the Board of Directors in the manner provided by law. Should the Corporation maintain a principal
office within the State of Delaware such registered office need not be identical to such principal
office of the Corporation.
Section 1.02 Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
STOCKHOLDERS
Section 2.01 Place of Meetings. All meetings of the stockholders shall be held at the
principal office of the Corporation, or at such other place within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and specified or fixed in the
notice of meeting or waivers of notice thereof. In lieu of holding a meeting of stockholders at a
designated place, the Board of Directors may, in its sole discretion, determine that any meeting of
stockholders may be held solely by means of remote communication.
Section 2.02 Quorum; Adjournment of Meetings.
(a) Unless otherwise required by law or provided in the Certificate of Incorporation or these
Bylaws, the holders of a majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders
for the transaction of business and the act of a majority of such stock so represented at any
meeting of stockholders at which a quorum is present shall constitute the act of the meeting of
stockholders. The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
(b) Notwithstanding the other provisions of the Certificate of Incorporation or these Bylaws,
the chairman of the meeting or the holders of a majority of the issued and outstanding stock,
present in person or represented by proxy, at any meeting of stockholders,
1
whether or not a quorum
is present, shall have the power to adjourn such meeting from time to time, without any notice
other than announcement at the meeting of the time and place of the holding of the adjourned
meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at such meeting. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted that might have been
transacted at the meeting as originally called.
Section 2.03 Annual Meetings. An annual meeting of the stockholders, for the election
of directors of the Corporation to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at such place, within or
without the State of Delaware, on such date, and at such time as the Board of Directors shall fix
and set forth in the notice of the meeting.
Section 2.04 Special Meetings. Unless otherwise provided in the Certificate of
Incorporation, special meetings of the stockholders for any purpose or purposes may be called at
any time by the President or by a majority of the Board of Directors, or by a majority of the
executive committee (if any).
Section 2.05 Record Date.
(a) For the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders, or any adjournment thereof, or entitled 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 of the Corporation may fix, in advance, a date as the record date for any such
determination of stockholders, which date shall not be more than
60 days nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other action.
(b) If the Board of Directors does not fix a record date for any meeting of the stockholders,
the record date for determining stockholders entitled to notice of or to vote at such meeting shall
be at the close of business on the day next preceding the day on which notice is given, or, if in
accordance with Article VIII, Section 3 of these Bylaws notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. If, in accordance with Section 12
of this Article II, corporate action without a meeting of stockholders is to be taken, the record
date for determining stockholders entitled to express consent to such corporate action in writing,
when no prior action by the Board of Directors is necessary, shall be the day on which the first
written consent is expressed. The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors adopts the resolution
relating thereto.
(c) A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
2
Section 2.06 Notice of Meetings. Written notice of the place, date and hour of all
meetings of the stockholders, the means of remote communications, if any, by which stockholders and
proxy holders may be deemed present in person and vote at the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given by or at the
direction of the President, the Secretary or the other person(s) calling the meeting to each
stockholder entitled to vote thereat not less than 10 nor more than 60 days before the date of the
meeting. Such notice may be delivered personally by mail or by electronic transmission in the
manner provided in Section 222 of the Delaware General Corporation Law. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation.
Section 2.07 Stock List. A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in the name of such
stockholder, 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 10 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, during ordinary business hours, at the
principal place of business of the Corporation. The stock list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.08 Proxies.
(a) Each stockholder entitled to vote at a meeting of stockholders or to express consent or
dissent to a corporate action in writing without a meeting may authorize another person or persons
to act for such stockholder by an instrument in writing, or by electronic transmission in the
manner provided in Section 212 of the Delaware General Corporation Law, filed with the Secretary.
A proxy shall be deemed signed if the stockholders name is placed on the proxy (whether by manual
signature, typewriting, facsimile, electronic or telegraphic transmission or otherwise) by the
stockholder or the stockholders attorney-in-fact. Proxies for use at any meeting of stockholders
shall be filed with the Secretary, or such other officer as the Board of Directors may from time to
time determine by resolution, before or at the time of the meeting. All proxies shall be received
and taken charge of and all ballots shall be received and canvassed by the secretary of the meeting
who shall decide all questions touching upon the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or inspectors shall have
been appointed by the chairman of the meeting, in which event such inspector or inspectors shall
decide all such questions.
(b) No proxy shall be valid after three years from its date, unless the proxy provides for a
longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable
and coupled with an interest sufficient in law to support an irrevocable power.
(c) Should a proxy designate two or more persons to act as proxies, unless such instrument
shall provide the contrary, a majority of such persons present at any meeting at which their powers
thereunder are to be exercised shall have and may exercise all the powers of voting or giving
consents thereby conferred, or if only one be present, then such powers may be
3
exercised by that
one; or, if an even number attend and a majority do not agree on any particular issue, each proxy
so attending shall be entitled to exercise such powers in respect of the same portion of the shares
as he is of the proxies representing such shares.
Section 2.09 Voting; Elections; Inspectors.
(a) Unless otherwise required by law or provided in the Certificate of Incorporation, each
stockholder shall have one vote for each share of stock entitled to vote that is registered in his
name on the record date for the meeting. Shares registered in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxy as the bylaw (or comparable
instrument) of such corporation may prescribe, or in the absence of such provision, as the Board of
Directors (or comparable body) of such corporation may determine. Shares registered in the name of
a deceased person may be voted by his executor or administrator, either in person or by proxy.
(b) All voting, except as required by the Certificate of Incorporation or where otherwise
required by law, may be by a voice vote; provided, however, that upon demand therefor by
stockholders holding a majority of the issued and outstanding stock present in person or by proxy
at any meeting a vote by written ballot shall be taken. Each written ballot shall state the name
of the stockholder or proxy voting and such other information as may be required under the
procedure established for the meeting. All elections of directors shall be by written ballot,
unless otherwise provided in the Certificate of Incorporation.
(c) At any meeting at which a vote is taken by ballots, the chairman of the meeting may
appoint one or more inspectors, each of whom shall subscribe an oath or affirmation to execute
faithfully the duties of inspector at such meeting with strict impartiality and according to the
best of his ability. Such inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any person to serve as
inspector, except no candidate for the office of director shall be appointed as an inspector.
(d) Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the
election of directors shall be prohibited.
Section 2.10 Order of Business. At each meeting of the stockholders, one of the
following persons, in the order in which they are listed (and in the absence of the first, the
next, and so on), shall serve as chairman of the meeting: Chairman of the Board of Directors,
President, Vice Presidents (in the order of their seniority if more than one) and Secretary. The
order of business at each such meeting shall be as determined by the chairman of the meeting. The
chairman of the meeting shall have the right and authority to prescribe such rules, regulations,
and procedures and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions or comments on the
affairs of the corporation, restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting polls.
4
Section 2.11 Treasury Stock. The Corporation shall not vote, directly or indirectly,
shares of its own stock owned by it and such shares shall not be counted for quorum purposes.
Section 2.12 Action Without Meeting. Unless otherwise provided in the Certificate of
Incorporation, any action permitted or required by law, the Certificate of Incorporation or these
Bylaws to be taken at a meeting of 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. Prompt notice of the taking of the corporate action without a
meeting by less than a unanimous written consent shall, to the extent required by applicable law,
be given by the Secretary to those stockholders who have not consented in writing, and who, if the
action had been taken at a meeting, would have been entitled to notice of the meeting if the record
date for notice of such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the Corporation.
Section 2.13 Meetings by Remote Communication. If authorized by the Board of
Directors, and subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxy holders not physically present at a meeting of stockholders may, by means of
remote communication, participate in the meeting and be deemed present in person and vote at the
meeting, whether such meeting is to be held in a designated place or solely by means of remote
communication, provided that (1) the Board of Directors shall implement reasonable measures to
verify that each person deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxy holder, (2) the Board of Directors shall implement
reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders, including the
opportunity to read or hear the proceedings in the meeting substantially concurrently with such
proceedings and (3) if the stockholder or proxy holder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be maintained by the
Secretary.
ARTICLE III
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 3.01 Power; Number; Term of Office.
(a) The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors, and subject to the restrictions imposed by law or the Certificate of
Incorporation, they may exercise all the powers of the Corporation.
(b) The number of directors that shall constitute the whole Board of Directors, shall be
determined from time to time by resolution of the Board of Directors (provided that no decrease in
the number of directors that would have the effect of shortening the term of an incumbent director
may be made by the Board of Directors). If the Board of Directors makes no such determination, the
number of directors shall be the number of directors named in the Certificate of Incorporation. If
the Certificate of Incorporation makes no such determination, the
5
number of directors shall be at
least one director. Each director shall hold office for the term lasting until the next annual
meeting of stockholders following their election and until their successors are elected, or until
his earlier death, resignation or removal, and the election of directors shall be by a plurality of
the votes of the shares present in person or represented by proxy at the annual meeting and
entitled to vote on the election of the directors at each meeting to the stockholders at which a
quorum is present.
(c) Unless otherwise provided in the Certificate of Incorporation, directors need not be
stockholders or residents of the State of Delaware.
Section 3.02 Quorum. Unless otherwise provided in the Certificate of Incorporation, a
majority of the total number of directors shall constitute a quorum for the transaction of business
of the Board of Directors and the vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
Section 3.03 Place of Meetings; Order of Business. The directors may hold their
meetings and may have an office and keep the books of the Corporation, except as otherwise provided
by law, in such place or places, within or without the State of Delaware, as the Board of Directors
may from time to time determine by resolution. At all meetings of the Board of Directors business
shall be transacted in such order as shall from time to time be determined by the Chairman. At all
meetings of the Board of Directors, the Chairman of the Board shall preside, and in his absence,
the President, or in the Presidents absence, a person chosen by the Board of Directors from among
the directors present. The Secretary of the Corporation shall act as secretary of the meeting of
the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any
person to act as secretary of the meeting.
Section 3.04 First Meeting. Each newly elected Board of Directors may hold its first
meeting for the purpose of organization and the transaction of business, if a quorum is present,
immediately after and at the same place as the annual meeting of the stockholders. Notice of such
meeting shall not be required. At the first meeting of the Board of Directors in each year at
which a quorum shall be present, held next after the annual meeting of stockholders, the Board of
Directors shall elect the officers of the Corporation.
Section 3.05 Regular Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as shall be designated from time to time by the Board of Directors.
Notice of such regular meetings shall not be required.
Section 3.06 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President or, on the written request of any two directors,
by the Secretary, in each case on at least 24 hours personal, written, telegraphic, cable,
facsimile, telephonic or e-mail notice to each director. Such notice, or any waiver thereof
pursuant to Section 8.02 hereof, need not state the purpose or purposes of such meeting, except as
may otherwise be required by law or provided for in the Certificate of Incorporation or these
Bylaws.
Section 3.07 Removal. Subject to the rights of the holders of any class or series of
stock of the Corporation having preference over the common stock of the Corporation as to
6
dividends
or upon liquidation to elect additional directors under specified circumstances, any director or
the entire Board of Directors may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors; provided that, unless the
Certificate of Incorporation otherwise provides, if the Board of Directors is classified, then the
stockholders may effect such removal only for cause; and provided further that, if the Certificate
of Incorporation expressly grants to stockholders the right to cumulate votes for the election of
directors and if less than the entire board is to be removed, no director may be removed without
cause if the votes cast against his removal would be sufficient to elect him if then cumulatively
voted at an election of the entire Board of Directors, or, if there be classes of directors, at an
election of the class of directors of which such director is a part.
Section 3.08 Vacancies; Increases in the Number of Directors.
(a) Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created
directorships resulting from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or a sole remaining
director; and any director so chosen shall hold office until the next annual election and until his
successor shall be duly elected and shall qualify, unless sooner displaced.
(b) If the directors of the Corporation are divided into classes, any directors elected to
fill vacancies or newly created directorships shall hold office until the next election of the
class for which such directors shall have been chosen, and until their successors shall be duly
elected and shall qualify.
Section 3.09 Compensation. Unless otherwise restricted by the Certificate of
Incorporation, the Board of Directors shall have the authority to fix the compensation of
directors.
Section 3.10 Action Without a Meeting; Telephone Conference Meeting.
(a) Unless otherwise restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board of Directors, or any committee designated by the
Board of Directors, may be taken without a meeting if all members of the Board of 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 consent shall have the same force and
effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument
filed with the Secretary of State of Delaware.
(b) Unless otherwise restricted by the Certificate of Incorporation, subject to the
requirement for notice of meetings, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in a meeting of such Board of Directors or
committee, as the case may be, by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting
7
to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 4.01 Designation; Powers. The Board of Directors may, by resolution passed by
a majority of the whole board, designate one or more committees, including, if the board shall so
determine, an executive committee, each such committee to consist of one or more of the directors
of the Corporation. Any such designated committee shall have and may exercise such of the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation as may be provided in such resolution, except that no such committee shall have the
power or authority of the Board of Directors 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 Corporations property and assets,
recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution
of the Corporation, or amending, altering or repealing these Bylaws or adopting new bylaws for the
Corporation and, unless such resolution or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Any such designated committee may authorize the seal of the Corporation to be
affixed to all papers that may require it. In addition to the above, such committee or committees
shall have such other powers and limitations of authority as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 4.02 Procedure; Meetings; Quorum. Any committee designated pursuant to
Section 4.01 of this Article shall choose its own chairman, shall keep regular minutes of its
proceedings and report the same to the Board of Directors when requested, shall fix its own rules
or procedures, and shall meet at such times and at such place or places as may be provided by such
rules, or by resolution of such committee or resolution of the Board of Directors. At every
meeting of any such committee, the presence of a majority of all the members thereof shall
constitute a quorum and the affirmative vote of a majority of the members present shall be
necessary for the adoption by it of any resolution.
Section 4.03 Substitution and Removal of Members; Vacancies. 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 such committee. The Board of Directors shall have
the power at any time to remove any member(s) of a committee and to appoint other directors in lieu
of the person(s) so removed and shall also have the power to fill vacancies in a committee.
ARTICLE V
OFFICERS
OFFICERS
Section 5.01 Number, Titles and Term of Office. The officers of the Corporation shall
be a President, one or more Vice Presidents, a Secretary, a Treasurer and such other officers
8
as
the Board of Directors may from time to time elect or appoint. Each officer shall hold office
until his successor shall be duly elected and shall qualify or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Any number of offices may be
held by the same person, unless the Certificate of Incorporation provides otherwise.
Section 5.02 Salaries. The salaries or other compensation of the officers and agents
of the Corporation elected or appointed by the Board of Directors shall be fixed from time to time
by the Board of Directors.
Section 5.03 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed, either with or without cause, by the vote of a majority of the Board of
Directors at a special meeting called for the purpose, or at any regular meeting of the Board of
Directors, provided that such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent shall not of itself create
contract rights.
Section 5.04 Vacancies. Any vacancy occurring in any office of the Corporation may be
filled by the Board of Directors.
Section 5.05 Powers and Duties of the President. Unless the Board of Directors
otherwise determines, the President shall be responsible for managing the day-to-day operations of
the Corporation and shall have the authority to agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation; and, unless the
Board of Directors otherwise determines, he shall, in the absence of the Chairman of the Board,
preside at all meetings of the stockholders and (should he be a director) of the Board of
Directors; and he shall have such other powers and duties as designated in accordance with these
Bylaws and as from time to time may be assigned to him by the Board of Directors.
Section 5.06 Powers and Duties of the Vice Presidents. In the absence of the
President, or in the event of his inability or refusal to act, a Vice President designated by the
Board of Directors shall perform the duties of the President, and when so acting shall have all the
powers of and be subject to all the restrictions upon the President. In the absence of a
designation by the Board of Directors of a Vice President to perform the duties of the President,
or in the event of his absence or inability or refusal to act, the Vice President who is present
and who is senior in terms of time as a Vice President of the Corporation shall so act. The Vice
Presidents shall perform such other duties and have such other powers as the Board of Directors may
from time to time prescribe.
Section 5.07 Powers and Duties of the Secretary. The Secretary shall keep the minutes
of all meetings of the Board of Directors, committees of directors and the stockholders, in books
provided for that purpose; he shall attend to the giving and serving of all notices; he may in the
name of the Corporation affix the seal of the Corporation to all contracts of the Corporation and
attest the affixation of the seal of the Corporation thereto; he may sign with the other appointed
officers all certificates for shares of capital stock of the Corporation; he shall have charge of
the certificate books, transfer books and stock ledgers, and such other books and papers as the
Board of Directors may direct, all of which shall at all reasonable times be open to inspection of
any director upon application at the office of the Corporation during business
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hours; he shall have
such other powers and duties as designated in these Bylaws and as from time to time may be assigned
to him by the Board of Directors; and he shall in general perform all acts incident to the office
of Secretary, subject to the control of the President and the Board of Directors.
Section 5.08 Powers and Duties of the Treasurer. The Treasurer shall have the custody
of the corporate funds and securities, except as otherwise provided by the Board of Directors, and
shall cause to be kept 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 president and the directors,
at the regular meetings of the Board of Directors, or whenever they may require it, an account of
all his or her or her transactions as Treasurer and of the financial condition of the Corporation.
The Treasurer shall perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 5.09 Action with Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the President or any Vice President shall have power
to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of
security holders of or with respect to any action of security holders of any other corporation in
which this Corporation may hold securities and otherwise to exercise any and all rights and powers
that this Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 6.01 Right to Indemnification. (A) Each person who was or is made a party or
witness or is threatened to be made a party or witness to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the
fact that he or she or a person of whom he or she is the legal representative, is or was a director
or officer of the Corporation, or, while a director or officer of the Corporation, is or was
serving or has agreed to serve at the request of the Corporation, in any capacity, in another
corporation or in any partnership, joint venture, trust or other enterprise in which the
Corporation has a partnership or other interest, or other entity that has an interest in the
Corporation, including service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director, officer, employee or agent or
in any other capacity while serving or having agreed to serve as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in
case of any such amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation to provide prior to
such amendment), against all expense, liability and loss (including, without limitation, attorneys
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
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in
settlement) reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and administrators, and (B) the
Corporation shall indemnify and hold harmless in such manner any person designated by the Board of
Directors, or any committee thereof, as a person subject to this indemnification provision, and who
was or is made a party or witness or is threatened to be made a party or witness to a proceeding by
reason of the fact that he, she or a person of whom he or she is the legal representative, is or
was serving at the request of the Board of Directors of the Corporation as a director, officer,
employee or agent of another corporation or a partnership, joint venture, trust or other enterprise
whether such request is made before or after the acts taken or allegedly taken or events occurring
or allegedly occurring that give rise to such proceeding; provided, however, that except as
provided in Section 6.03, the Corporation shall indemnify any such person seeking indemnification
pursuant to this Section 6.01 in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred herein shall be a contract right based upon an
offer from the Corporation, shall be deemed to be accepted by such persons service or continued
service as a director or officer of the Corporation for any period after the offer is made and
shall include the right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a current, former or proposed
director or officer in his or her capacity as a current, former or proposed director or officer
(and not in any other capacity in which service was or is or has been agreed to be rendered by such
person while a director or officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such indemnified person, to repay all amounts so
advanced if it shall ultimately be determined that such indemnified person is not entitled to be
indemnified under this Section or otherwise.
Section 6.02 Indemnification of Employees and Agents. The Corporation may, by action
of its Board of Directors, provide indemnification to employees and agents of the Corporation,
individually or as a group, with the same scope and effect as the indemnification of directors and
officers provided for in this Article.
Section 6.03 Right of Claimant to Bring Suit. If a written claim received by the
Corporation from or on behalf of an indemnified party under this Article VI is not paid in full by
the Corporation within 30 days after such receipt, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Corporation) that the claimant
has not met the standards of conduct that make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the
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claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in the Delaware General Corporation Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 6.04 Nonexclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final disposition conferred in
this Article VI shall not be exclusive of any other right that any person may have or hereafter
acquire under any law (common or statutory), provision of the Certificate of Incorporation of the
Corporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.05 Insurance. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any person who is or was serving as 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 expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the Delaware General
Corporation Law.
Section 6.06 Savings Clause. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify and hold harmless each current, former or proposed director and officer of
the Corporation, as to costs, charges and expenses (including attorneys fees), judgments, fines,
and amounts paid in settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative to the full extent permitted by any applicable portion of
this Article VI that shall not have been invalidated and to the fullest extent permitted by
applicable law.
Section 6.07 Definitions. For purposes of this Article, reference to the
Corporation shall include, in addition to the Corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger prior to (or, in the case
of an entity specifically designated in a resolution of the Board of Directors, after) the adoption
hereof and which, if its separate existence had continued, would have had the power and authority
to indemnify its directors, officers and 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 the provisions of this Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its separate existence
had continued.
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ARTICLE VII
CAPITAL STOCK
CAPITAL STOCK
Section 7.01 Certificates of Stock. The shares of stock 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 class or series shall be uncertificated shares that may be
evidenced by a book-entry system maintained by the registrar of such stock. If shares are
represented by certificates, such certificates shall be in such form, not inconsistent with that
required by law and the Certificate of Incorporation, as shall be approved by the Board of
Directors. The certificates representing shares of stock of each class shall be signed by, or in
the name of, the Corporation by the President or a Vice President and by the Secretary, any
assistant secretary, the Treasurer or any assistant treasurer certifying the number of shares (and,
if the stock of the Corporation shall be divided into classes or series, the class and series of
such shares) owned by such stockholder in the Corporation; provided, however, that any of or all
the signatures on the certificate may be facsimile. The stock record books and the blank stock
certificate books shall be kept by the Secretary, or at the office of such transfer agent or
transfer agents as the Board of Directors may from time to time by resolution determine. In case
any officer, transfer agent or registrar who shall have signed or whose facsimile signature or
signatures shall have been placed upon any such certificate or certificates shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued by the Corporation,
such certificate may nevertheless 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 stock certificates
shall be consecutively numbered and shall be entered in the books of the Corporation as they are
issued and shall exhibit the holders name and number of shares.
Section 7.02 Transfer of Shares. The shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in person or by their duly
authorized attorneys or legal representatives upon surrender and cancellation of certificates for a
like number of shares. Upon surrender to the Corporation or a 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 transaction upon its books.
Section 7.03 Ownership of Shares. The Corporation shall be entitled to treat the
holder of record of any share or shares of capital stock of the Corporation as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Section 7.04 Regulations Regarding Certificates. The Board of Directors shall have
the power and authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of certificates for shares of
capital stock of the Corporation.
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Section 7.05 Lost or Destroyed Certificates. The Board of Directors may determine the
conditions upon which a new certificate of stock may be issued in place of a certificate that is
alleged to have been lost, stolen or destroyed; and may, in their discretion, require the owner of
such certificate or his legal representative to give bond, with sufficient surety, to indemnify the
Corporation and each transfer agent and registrar against any and all losses or claims that may
arise by reason of the issue of a new certificate in the place of the one so lost, stolen or
destroyed.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 8.01 Fiscal Year. The fiscal year of the Corporation shall be such as
established from time to time by the Board of Directors.
Section 8.02 Notice and Waiver of Notice.
(a) Whenever any notice is required to be given by law, the Certificate of Incorporation or
under the provisions of these Bylaws, said notice shall be deemed to be sufficient if given (i) by
electronic transmission or (ii) by deposit of the same in a post office box in a sealed prepaid
envelope addressed to the person entitled thereto at his post office address, as it appears on the
records of the Corporation, and such notice shall be deemed to have been given on the day of such
electronic transmission or mailing, as the case may be.
(b) Whenever notice is required to be given by law, the Certificate of Incorporation or under
any of the provisions of 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 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 or these Bylaws.
(c) Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under these Bylaws shall be
effective if given in the manner permitted by Section 232 of the Delaware General Corporation Law.
(d) For purposes of these Bylaws, 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.
Section 8.03 Resignations. Any director, member of a committee or officer may resign
at any time. Such resignation shall be made in writing or by electronic transmission and
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shall
take effect at the time of its receipt by the President or Secretary or at such later time as is
therein specified. The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
Section 8.04 Facsimile Signatures. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any
officer or officers of the Corporation may be used as authorized by the Board of Directors.
Section 8.05 Reliance upon Books, Reports and Records. Each director and each member
of any committee designated by the Board of Directors shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports made to the
Corporation by any of its officers, or by an independent certified public accountant, or by an
appraiser selected with reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
Section 8.06 Interested Directors and Officers.
(a) 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 that authorizes the contract or transaction, or solely because any such
directors or officers votes are counted for such purpose, if:
(1) The material facts as to the directors or officers 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
(2) The material facts as to the directors or officers relationship or interest and
as to the contract or transaction are disclosed or are known to the shareholders entitled to
vote thereon, and the contract or transaction is specifically approved in good faith by vote
of the shareholders; or
(3) 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
shareholders.
(b) 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 that authorizes the contract or transaction.
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ARTICLE IX
AMENDMENTS
AMENDMENTS
Section 9.01 Amendments. If provided in the Certificate of Incorporation of the
Corporation, the Board of Directors shall have the power to adopt, amend and repeal from time to
time bylaws of the Corporation, subject to the right of the stockholders entitled to vote with
respect thereto to amend or repeal such bylaws as adopted or amended by the Board of Directors.
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