New Planet
Resources, Inc.
A Delaware Corporation
BY LAWS
ARTICLE I
Principal
Executive Office
The principal executive office of New Planet Resources, Inc. (the
"Corporation") shall be at 1415
Lousiaian, Suite 3100, Houston, Texas 77002. The Corporation may also
have offices at such other places within
or without the State of Texas as the board of directors shall from time
to time determine.
ARTICLE II
Stockholders
SECTION 1. Place of Meetings. All annual and special meetings of
stockholders shall be held at
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the principal executive office of the Corporation or at such other place
within or without the State of Delaware
as the board of directors may determine and as designated in the notice of such
meeting.
SECTION 2. Annual Meeting. A meetings of the stockholders of the
Corporation for the election of
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directors and for the transaction of any other business of the Corporation
shall be held annually at such date
and time as the board of directors may determine.
SECTION 3. Special Meetings. Special meeting of the stockholders of the
Corporation for any
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purpose or purposes may be called at any time by the board of directors of the
Corporation, or by a committee of
the board of directors which as been duly designated by the board of directors
and whose powers and authorities,
as provided in a resolution of the board of directors or in the By Laws of the
Corporation, include the power and
authority to call such meetings but such special meetings may not be called by
another person or persons.
SECTION 4. Conduct of Meetings. Annual and special meetings shall be
conducted in accordance
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with these By Laws or as otherwise prescribed by the board of directors.
The chairman or the chief executive
officer of the Corporation shall preside at such meetings.
SECTION 5. Notice of Meeting. Written notice stating the place, day and
hour of the meeting and
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the purpose or purposes for which the meeting is called shall be mailed
by the secretary or the officer
performing his duties, not less than ten days nor more than fifty days before
the meeting to each stockholder of
record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at his address as
it appears on the stock transfer books
or records of the Corporation as of the record date prescribed in Section 6,
with postage thereon prepaid. If a
stockholder be present at a meeting, or in writing waive notice thereof
before or after the meeting, notice of
the meeting to such stockholder shall be unnecessary. When any stockholders'
meeting, either annual or special,
is adjourned for thirty days or more, notice of the adjourned meeting
shall be given as in the case of an
original meeting. It shall not be necessary to give any notice of the time
and place of any meeting adjourned
for less than thirty days or of the business to be transacted at such
adjourned meeting, other than an
announcement at the meeting at which such adjournment is taken.
SECTION 6. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice
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of or to vote at any meeting of stockholders, or any adjournment thereof,
or stockholders entitled to receive
payment of any dividend, or in order to make a determination of stockholders
for any other proper purpose, the
board of directors shall fix in advance a date as the record date for any such
determination of stockholders.
Such date in any case shall be not more than sixty days, and in case of a
meeting of stockholders, not less than
ten days prior to the date on which the particular action, requiring such
determination of stockholders, is to be
taken.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
SECTION 7. Voting Lists. The officer or agent having charge of the stock
transfer books for
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shares of the Corporation shall make, at least ten days before each meeting of
stockholders, a complete record of
the stockholders entitled to vote at such meeting or any adjournment thereof,
with the address of and the number
of shares held by each. The record, for a period of ten days before such
meeting, shall be kept on file at the
principal executive office of the Corporation, whether within or outside the
State of Texas, and shall be subject
to inspection by any stockholder for any purpose germane to the meeting at
any time during usual business hours.
Such record shall also be produced and kept open at the time and place of the
meeting and shall be subject to the
inspection of any stockholder for any purpose germane to the meeting during
the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
stockholders entitled to examine
such record or transfer books or to vote at any meeting of stockholders.
SECTION 8. Quorum. One-fourth of the outstanding shares of the
Corporation entitled to vote,
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represented in person or by proxy, shall constitute a quorum at a meeting
of stockholders. If less than
one-fourth of the outstanding shares are represented at a meeting, a
majority of the shares so represented may
adjourn the meeting from time to time without further notice. 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 notified. 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.
SECTION 9. Proxies. At all meetings of stockholders, a stockholder may
vote by proxy executed in
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writing by the stockholder or by his duly authorized attorney in fact.
Proxies solicited on behalf of the
management shall be voted as directed by the stockholder or, in the absence of
such direction, as determined by a
majority of the board of directors. No proxy shall be valid after eleven
months from the date of its execution
unless otherwise provided in the proxy.
SECTION 10. Voting. At each election for directors every stockholder
entitled to vote at such
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election shall be entitled to one vote for each share of stock held.
Unless otherwise provided by the
Certificate of Incorporation, by statute, or by these By Laws, a majority of
those votes cast by stockholders at
a lawful meeting shall be sufficient to pass on a transaction or matter,
except in the election of directors,
which election shall be determined by a plurality of the votes of the shares
present in person or by proxy at the
meeting and entitled to vote on the election of directors.
SECTION 11. Voting of Shares in the Name of Two or More Persons. When
ownership of stock stands
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in the name of two or more persons, in the absence of written directions to
the Corporation to the contrary, at
any meeting of the stockholders of the Corporation any one or more of such
stockholders may cast, in person or by
proxy, all votes to which such ownership is entitled. In the event an attempt
is made to cast conflicting votes,
in person or by proxy, by the several persons in whose name shares of stock
stand, the vote or votes to which
these persons are entitled shall be cast as directed by a majority of those
holding such stock and present in
person or by proxy at such meeting, but no votes shall be cast for such stock if
a majority cannot agree.
SECTION 12. Voting of Shares by Certain Holders. Shares standing
in the name of another
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corporation may be voted by any officer, agent or proxy as the By Laws of such
corporation may prescribe, or, in
the absence of such provision, as the board of directors of such corporation
may determine. Shares held by an
administrator, executor, guardian or conservator may be voted by him, either
in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a
trustee may be voted by him, either in
person or by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares
into his name. Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or
under the control of a receiver may be voted by such receiver without the
transfer thereof into his name if
authority to do so is contained in an appropriate order of the court or
other public authority by which such
receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been
transferred into the name of the pledgee and thereafter the pledgee
shall be entitled to vote the shares so
transferred.
Neither treasury shares of its own stock held by the Corporation,
nor shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation
are held by the Corporation, shall be voted at any meeting or counted in
determining the total number of
outstanding shares at any given time for purposes of any meeting.
SECTION 13. Inspectors of Election. In advance of any meeting of
stockholders, the chairman of
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the board or the board of directors may appoint any persons, other than nominees
for office, as inspectors of
election to act at such meeting or any adjournment thereof. The number of
inspectors shall be either one or
three. If the board of directors so appoints either one or three inspectors,
that appointment shall not be
altered at the meeting. If inspectors of election are not so appointed, the
chairman of the board may make such
appointment at the meeting. In case any person appointed as inspector fails to
appear or fails or refuses to
act, the vacancy may be filled by appointment in advance of the meeting or at
the meeting by the chairman of the
board or the president.
Unless otherwise prescribed by applicable law, the duties of such inspectors
shall include: determining
the number of shares of stock and the voting power of each share, the shares of
stock represented at the
meeting, the existence of a quorum, the authenticity, validity and effect of
proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to
vote; counting and tabulating all votes or consents; determining the result;
and such acts as may be proper to
conduct the election or vote with fairness to all stockholders.
SECTION 14. Nominating Committee. The board of directors or a committee
appointed by the board of
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directors shall act as nominating committee for selecting the management
nominees for election as directors.
Except in the case of a nominee substituted as a result of the death or other
incapacity of a management nominee,
the nominating committee shall deliver written nominations to the
secretary at least twenty days prior to the
date of the annual meeting. Provided such committee makes such nominations,
no nominations for directors except
those made by the nominating committee shall be voted upon at the annual
meeting unless other nominations by
stockholders are made in writing and delivered to the secretary of the
Corporation in accordance with the
provisions of the Corporation's Certificate of Incorporation.
SECTION 15. New Business. Any new business to be taken up at the annual
meeting shall be stated
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in writing and filed with the secretary of the Corporation in accordance with
the provisions of the Corporation's
Certificate of Incorporation. This provision shall not prevent the
consideration and approval or disapproval at
the annual meeting of reports of officers, directors and committees, but in
connection with such reports no new
business shall be acted upon at such annual meeting unless stated and filed
as provided in the Corporation's
Certificate of Incorporation.
ARTICLE III
Board of
Directors
SECTION 1. General Powers. The business and affairs of the
Corporation shall be under the
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direction of its board of directors. The chairman shall preside at all meetings
of the board of directors.
SECTION 2. Number, Term and Election. The number of directors of the
Corporation shall be such
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number, not less than one nor more than 15 (exclusive of directors, if any,
to be elected by holders of preferred
stock of the Corporation), as shall be provided from time to time in a
resolution adopted by the board of
directors, provided that no decrease in the number of directors shall have
the effect of shortening the term of
any incumbent director, and provided further that no action shall be taken
to decrease or increase the number of
directors from time to time unless at least two-thirds of the directors
then in office shall concur in said
action. Exclusive of directors, if any, elected by holders of preferred
stock, vacancies in the board of
directors of the Corporation, however caused, and newly created
directorships shall be filled by a vote of
two-thirds of the directors then in office, whether or not a quorum, and any
director so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term
of the class to which the director
has been chosen expires and when the director's successor is elected and
qualified. The board of directors shall
be classified in accordance with the provisions of Section 3 of this
Article III.
SECTION 3. Classified Board. The board of directors of the Corporation
(other than directors
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which may be elected by the holders of preferred stock), shall be divided
into three classes of directors which
shall be designated Class I, Class II and Class III. The members of each
class shall be elected for a term of
three years and until their successors are elected and qualified. Such
classes shall be as nearly equal in
number as the then total number of directors constituting the entire board of
directors shall permit, exclusive
of directors, if any, elected by holders of preferred stock, with the terms of
office of all members of one class
expiring each year. Should the number of directors not be equally divisible
by three, the excess director or
directors shall be assigned to Classes I or II as follows: (1) if there
shall be an excess of one directorship
over the number equally divisible by three, such extra directorship shall
be classified in Class I; and (2) if
there be an excess of two directorships over a number equally divisible by
three, one shall be classified in
Class I and the other in Class II. At the organizational meeting of the
Corporation, directors of Class I shall
be elected to hold office for a term expiring at the first annual meeting of
stockholders, directors of Class II
shall be elected to hold office for a term expiring at the second succeeding
annual meeting of stockholders and
directors of Class III shall be elected to hold office for a term expiring at
the third succeeding annual meeting
thereafter. Thereafter, at each succeeding annual meeting, directors of
each class shall be elected for three
year terms. Notwithstanding the foregoing, the director whose term shall
expire at any annual meeting shall
continue to serve until such time as his successor shall have been duly
elected and shall have qualified unless
his position on the board of directors shall have been abolished by action
taken to reduce the size of the board
of directors prior to said meeting.
Should the number of directors of the Corporation be reduced, the
directorship(s) eliminated shall be
allocated among classes as appropriate so that the number of directors
in each class is as specified in the
position(s) to be abolished. Notwithstanding the foregoing, no decrease
in the number of directors shall have
the effect of shortening the term of any incumbent director. Should the
number of directors of the Corporation
be increased, other than directors which may be elected by the holders of
preferred stock, the additional
directorships shall be allocated among classes as appropriate so that the
number of directors in each class is as
specified in the immediately preceding paragraph.
Whenever the holders of any one or more series of preferred stock of
the Corporation shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the board of directors
shall include said directors so elected and not be in addition to the number
of directors fixed as provided in
this Article III. Notwithstanding the foregoing, and except as otherwise
may be required By Law, whenever the
holders of any one or more series of preferred stock of the Corporation
elect one or more directors of the
Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding
annual meeting of stockholders.
SECTION 4. Regular Meetings. A regular meeting of the board of directors
shall be held at such
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time and place as shall be determined by resolution of the board of directors
without other notice than such
resolution.
SECTION 5. Special Meetings. Special meetings of the board of directors
may be called by or at
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the request of the chairman, the chief executive officer or one-third of the
directors. The person calling the
special meetings of the board of directors may fix any place as the place for
holding any special meeting of the
board of directors called by such persons.
Members of the board of the directors may participate in special
meetings by means of telephone
conference or similar communications equipment by which all persons
participating in the meeting can hear each
other. Such participation shall constitute presence in person.
SECTION 6. Notice. Written notice of any special meeting shall be
given to each director at
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least two days previous thereto delivered personally or by telegram or at
least seven days previous thereto
delivered by mail at the address at which the director is most likely to be
reached. Such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid if mailed or
when delivered to the telegraph company if sent by telegram. Any director
may waive notice of any meeting by a
writing filed with the secretary. The attendance of a director at a meeting
shall constitute a waiver of notice
of such meeting, except where a director attends a meeting for the
express purpose of objecting 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 meeting of the board of directors
need be specified in the notice or
waiver of notice of such meeting.
SECTION 7. Quorum. A majority of the number of directors fixed by Section
2 shall constitute a
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quorum for the transaction of business at any meeting of the board of
directors, but if less than such majority
is present at a meeting, a majority of the directors present may adjourn the
meeting from time to time. Notice
of any adjourned meeting shall be given in the same manner as prescribed by
Section 5 of this Article III.
SECTION 8. Manner of Acting. The act of the majority of the directors
present at a meeting at
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which a quorum is present shall be the act of the board of directors, unless
a greater number is prescribed by
these By Laws, the Certificate of Incorporation, or the General Corporation Law
of the State of Delaware.
SECTION 9. Action Without a Meeting. Any action required or permitted
to be taken by the board
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of directors at a meeting may be taken without a meeting if a consent in
writing, setting forth the action so
taken, shall be signed by all of the directors.
SECTION 10. Resignation. Any director may resign at any time by sending
a written notice of such
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resignation to the home office of the Corporation addressed to the chairman.
Unless otherwise specified therein
such resignation shall take effect upon receipt thereof by the chairman.
SECTION 11. Vacancies. Any vacancy occurring on the board of
directors shall be filled in
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accordance with the provisions of the Corporation's Certificate of
Incorporation. Any directorship to be filled
by reason of an increase in the number of directors may be filled by the
affirmative vote of two-thirds of the
directors then in office or by election at an annual meeting or at a special
meeting of the stockholders held for
that purpose. The term of such director shall be in accordance with
the provisions of the Corporation's
Certificate of Incorporation.
SECTION 12. Removal of Directors. Any director or the entire board of
directors may be removed
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only in accordance with the provisions of the Corporation's Certificate of
Incorporation.
SECTION 13. Compensation. Directors, as such, may receive compensation
for service on the board
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of directors. Members of either standing or special committees may be allowed
such compensation as the board of
directors may determine.
SECTION 14. Age Limitation. No person 80 years or more of age shall be
eligible for election,
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reelection, appointment or reappointment to the board of the Corporation.
No director shall serve as such beyond
the annual meeting of the Corporation immediately following the director
becoming 80 years of age. This age
limitation does not apply to an advisory director.
ARTICLE IV
Committees
of the Board of Directors
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more
committees, as they may determine to be necessary or appropriate for the
conduct of the business of the
Corporation, and may prescribe the duties, constitution and procedures
thereof. Each committee shall consist of
one or more directors of the Corporation appointed by the chairman. The
chairman may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting
of the committee.
The chairman shall have power at any time to change the members of,
to fill vacancies in, and to
discharge any committee of the board. Any member of any such committee may
resign at any time by giving notice
to the Corporation; provided, however, that notice to the board, the
chairman of the board, the chief executive
officer, the chairman of such committee, or the secretary shall be
deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such
notice or at any later time specified
therein; and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make
it effective. Any member of any such committee may be removed at any time,
either with or without cause, by the
affirmative vote of a majority of the authorized number of directors at
any meeting of the board called for that
purpose.
ARTICLE V
Officers
SECTION 1. Positions. The officers of the Corporation shall be a chairman,
a president, one or
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more vice presidents, a secretary and a treasurer, each of whom shall be
elected by the board of directors. The
board of directors may designate one or more vice presidents as executive
vice president or senior vice
president. The board of directors may also elect or authorize the
appointment of such other officers as the
business of the Corporation may require. The officers shall have such
authority and perform such duties as the
board of directors may from time to time authorize or determine. In the
absence of action by the board of
directors, the officers shall have such powers and duties as generally pertain
to their respective offices.
SECTION 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the board of directors at the first
meeting of the board of directors held after each annual meeting
of the stockholders. If the election of officers is not held at such meeting,
such election shall be held as
soon thereafter as possible. Each officer shall hold office until his
successor shall have been duly elected and
qualified or until his death or until he shall resign or shall have been
removed in the manner hereinafter
provided. Election or appointment of an officer, employee or agent shall
not of itself create contract rights.
The board of directors may authorize the Corporation to enter into an
employment contract with any officer in
accordance with state law; but no such contract shall impair the right
of the board of directors to remove any
officer at any time in accordance with Section 3 of this Article V.
SECTION 3. Removal. Any officer may be removed by vote of two-thirds
of the board of directors
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whenever, in its judgment, the best interests of the Corporation will be
served thereby, but such removal, other
than for cause, shall be without prejudice to the contract rights, if any, of
the person so removed.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal,
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disqualification or otherwise, may be filled by the board of directors for the
unexpired portion of the term.
SECTION 5. Remuneration. The remuneration of the officers shall be
fixed from time to time by
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the board of directors, and no officer shall be prevented from receiving
such salary by reason of the fact that
he is also a director of the Corporation.
SECTION 6. Age Limitation. No person 80 or more years of age shall be
eligible for election,
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reelection, appointment or reappointment as an officer of the Corporation.
No officer shall serve beyond the
annual meeting of the Corporation immediately following the officer becoming 80
or more years of age.
ARTICLE VI
Contracts, Loans,
Checks and Deposits
SECTION 1. Contracts. To the extent permitted by applicable law, and
except as otherwise
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prescribed by the Corporation's Certificate of Incorporation or these By
Laws with respect to certificates for
shares, the board of directors or the executive committee may authorize any
officer, employee, or agent of the
Corporation to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the
Corporation. Such authority may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of
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indebtedness shall be issued in its name unless authorized by the board of
directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other orders
for the payment of money,
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notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by one or more
officers, employees or agents of the Corporation in such manner, including
in facsimile form, as shall from time
to time be determined by resolution of the board of directors.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from
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time to time to the credit of the Corporation in any of its duly
authorized depositories as the board of
directors may select.
ARTICLE VII
Certificates
for Shares and Their Transfer
SECTION 1. Certificates for Shares. The shares of the Corporation
shall be represented by
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certificates signed by the chairman of the board of directors or the presiden
or a vice president and by the
treasurer or an assistant treasurer or the secretary or an assistant
secretary of the Corporation, and may be
sealed with the seal of the Corporation or a facsimile thereof. Any or all
of the signatures upon a certificate
may be facsimiles if the certificate is countersigned by a transfer agent,
or registered by a registrar, other
than the Corporation itself or an employee of the Corporation. If any
officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before the certificate is
issued, it may be issued by the Corporation with the same effect as if he
were such officer at the date of its
issue.
SECTION 2. Form of Share Certificates. All certificates representing
shares issued by the
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Corporation shall set forth upon the face or back that the Corporation will
furnish to any stockholder upon
request and without charge a full statement of the designations, preferences,
limitations, and relative rights of
the shares of each class authorized to be issued, the variations in the
relative rights and preferences between
the shares of each such series so far as the same have been fixed and
determined, and the authority of the board
of directors to fix and determine the relative rights and preferences of
subsequent series.
Each certificate representing shares shall state upon the face
thereof: that the Corporation is
organized under the laws of the State of Delaware; the name of the person to
whom issued; the number and class of
shares, the designation of the series, if any, which such certificate
represents; the par value of each share
represented by such certificate, or a statement that the shares are
without par value. Other matters in regard
to the form of the certificates shall be determined by the board of directors.
SECTION 3. Payment for Shares. No certificate shall be issued for any
share until such share is fully paid.
SECTION 4. Form of Payment for Shares. The consideration for the
issuance of shares shall be paid in accordance with the provisions of the
Corporation's Certificate of Incorporation.
SECTION 5. Transfer of Shares. Transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books. Authority for
such transfer shall be given only to the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
such authority, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Corporation. Such transfer shall be
made only on surrender for cancellation of the certificate for such shares.
The person in whose name shares of
capital stock stand on the books of the Corporation shall be deemed by the
Corporation to be the owner thereof
for all purposes.
SECTION 6. Lost Certificates. The board of directors may direct a new
certificate to be issued
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in place of any certificate 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 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.
ARTICLE VIII
Fiscal Year; Annual
Audit
The fiscal year of the Corporation shall end on the last day of December
of each year. The Corporation
shall be subject to an annual audit as of the end of its fiscal year by
independent public accountants appointed
by and responsible to the board of directors.
ARTICLE IX
Dividends
Dividends upon the stock of the Corporation, subject to the
provisions of the Certificate of
Incorporation, if any, 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 the Corporation's own
stock.
ARTICLE X
Corporation
Seal
The
corporate seal of the Corporation shall be in such form as the board of
directors shall prescribe.
ARTICLE XI
Amendments
In accordance with the Corporation's Certificate of Incorporation,
these By Laws may be repealed,
altered, amended or rescinded by the stockholders of the Corporation
only by vote of not less than 75% of the
voting power of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for
that purpose (provided that notice of such proposed repeal, alteration,
amendment or rescission is included in
the notice of such meeting). In addition, the board of directors may repeal,
alter, amend or rescind these By
Laws by vote of two-thirds of the board of directors at a legal meeting held in
accordance with the provisions of
these By Laws.
NEW PLANET RESOURCES, INC.
