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EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
ENCORE ACQUISITION PARTNERS, INC.
ARTICLE I
OFFICES
Section 1. Name. The name of the corporation is Encore Acquisition
Partners, Inc. (hereinafter called the "Corporation").
Section 2. Offices. The Corporation shall have such offices, and keep
the books and records of the Corporation as may be required by law, and at such
other place or places as the Board of Directors may from time to time determine
or the business of the Corporation require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings. The annual meetings of stockholders for the
election of directors and for the transaction of such other business as may
property come before the meeting shall be held in June of each year, beginning
in 1999, at such place as designated by the Board of Directors in the notice of
such meeting.
Section 2. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called by (i) the Chief Executive Officer, (ii) a
majority of the entire Board of Directors, or (iii) a majority of the Investor
Nominees (as such term is defined in the Stockholders' Agreement). Any of the
stockholders may call a special meeting for the purpose of complying with the
terms of the Stockholders' Agreement.
Section 3. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the stockholders, whether annual or special,
shall be given, either by personal delivery or by mail, not less than 10 nor
more than 60 days before the date of the meeting to each stockholder of record
entitled to notice of the meeting. If mailed, such notice shall be deemed given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholders address as it appears on the records of the
Corporation. Each such notice shall state the place, date and hour of the
meeting; and the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy without protesting, prior to
or at the commencement of the meeting, the lack of proper notice to such
stockholder. Notice of adjournment of a meeting of stockholders need not be
given if the time and place to which it is adjourned are announced at such
meeting, unless the adjournment is for more than 30 days or, after adjournment,
a new record date is fixed for the adjourned meeting.
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Section 4. Quorum.
(a) The holders of a majority of the shares of stock entitled to be
voted, present in person or represented by proxy, shall constitute a quorum at
any meeting of the stockholders. In the absence of a quorum, the holders of a
majority of the shares of stock entitled to be voted at the meeting may adjourn
the meeting from time to time. At any such adjourned meeting at which a quorum
is present, any business may be transacted which might have been transacted at
the meeting as originally called.
(b) For purposes of voting a particular class of stock (when class
votes are necessary), the holders of a majority of the shares of each class of
stock entitled to be voted, present in person or represented by proxy, shall
constitute a quorum at any meeting of the class of stockholders. In the absence
of a quorum, the holders of a majority of the shares of each class of stock
entitled to be voted at such meeting may adjourn the meeting from time to time.
At any such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called.
Section 5. Voting. At each meeting of the stockholders, all corporate
actions, other than the election of directors, to be taken by vote of the
stockholders (except as otherwise provided in the Certificate of Incorporation)
shall be authorized by a majority of the votes cast by the stockholders entitled
to vote thereon, present in person or represented by proxy. There shall be no
separate votes of classes of capital stock, except as specifically required by
law, the Certificate of Incorporation, the Bylaws or the Stockholders'
Agreement. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of the directors. Each stockholder entitled to vote at any meeting
of stockholders may authorize any person or persons to act for such stockholder
by a proxy signed by such stockholder or such stockholder's attorney-in-fact.
The vote on any matter, including the election of directors, need not
be by written ballot. In the case of a vote by written ballot, each ballot shall
be signed by the stockholder voting, or by such stockholder's proxy, and shall
state the number of shares voted.
Section 6. Participation in Meeting by Means of Communication
Equipment. Any stockholder may participate in any meeting of the stockholders by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number. Subject to the requirements of the Stockholders'
Agreement, the Board of Directors shall consist of not less than one (1) and not
more than nine (9) directors, and the exact number of directors which shall
constitute the Board of Directors shall be fixed from time to time by resolution
of the Board; provided, however, that no decrease in the number of directors
constituting the Board shall have the effect of shortening the term of any
incumbent director. None of the directors need be stockholders of the
Corporation or residents of the State of Delaware.
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Section 2. Vacancies. Subject to the requirements of the Stockholders'
Agreement, any vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office for a term expiring at the next annual meeting of
stockholders and until their successors are duly elected and qualified or until
their earlier resignation or removal. If there are no directors in office, then
an election of directors may be held in the manner provided by statute.
Section 3. Quorum and Manner of Acting. Subject to Article IV, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business at any meeting of the Board, and the vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board. In the absence of a quorum, a majority of the directors
present may adjourn the meeting to another time and place. At any adjourned
meeting at which a quorum is present, any business that might have been
transacted at the meeting as originally called may be transacted.
Section 4. Regular and Special Meetings. Regular meetings of the Board
of Directors shall be held at such times and places as the Board shall from time
to time by resolution determine. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board, the Chief Executive
Officer, or the President or by at least two of the directors.
Section 5. Participation in Meeting by Means of Communication
Equipment. Any one or more members of the Board of Directors or any committee
thereof may participate in any meeting of the Board or of any such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
Section 6. Committees. The Board of Directors may, by unanimous
resolution, designate one or more committees, each committee to consist of two
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution, shall have and may
exercise the powers 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; provided, however, that in the
absence or disqualification of any member of such committee or committees 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. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Section 7. 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 sum for attendance at each meeting of the Board of Directors or a stated
salary as a director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
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Section 8. Resignations. Any director of the Corporation may at any
time resign by giving written notice to the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IV
SPECIAL BOARD AUTHORIZATION
FOR CERTAIN MATTERS
Section 1. Special Board Authorization for Certain Matters. The
Corporation (and the officers and agents acting on the Corporation's behalf)
shall not, and the Corporation when acting in its capacity as the general
partner or controlling stockholder of any of its Subsidiaries (and the officers
and agents acting on the Corporation's behalf in such capacity) shall not permit
such Subsidiaries to, do any of the things described in clauses (a) - (i) below
without the affirmative vote of at least a majority of the number of Investor
Directors (as defined below) at a regular meeting or a special meeting called
for the purpose, or by written consent:
(a) issue any capital stock, partnership interest or other
similar equity interest (including options, warrants and phantom stock
rights) in the Corporation or any of its Subsidiaries (including,
without limitation, any common stock or preferred stock of the
Corporation or any general partnership, limited partnership or
preferred limited partnership interest in any partnership), except for
Capital Calls (as defined in that certain Stock Purchase Agreement,
dated as August 18, 1998, by and among the Corporation and the
signatories thereto (the "Stock Purchase Agreement") and the other
transactions specifically approved in the Stock Purchase Agreement) or
phase any capital stock, partnership interest or other similar equity
interest (including options, warrants and phantom stock rights) in the
Corporation or any of its Subsidiaries (including, without limitation,
any common stock or preferred stock of the Corporation or any general
partnership, limited partnership or preferred limited partnership
interest in any partnership);
(b) enter into any transaction (other than employment
arrangements made in the ordinary course of business with
non-managerial employees whose compensation does not exceed $125,000
per year), including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any
Affiliate or employee unless such transactions are in the ordinary
course of the Corporation's or such Subsidiary's business and are upon
fair and reasonable terms no less favorable to the Corporation, or such
Subsidiary, as the case may be, than it would obtain in a comparable
arm's-length transaction with unaffiliated Persons and the aggregate
amount of money or the value of Property to be paid or received by the
Corporation or such Subsidiary in such transaction, together with all
other transactions then in effect among the Corporation or such
Subsidiary and its Affiliates, would not exceed $25,000 in any twelve
month period;
(c) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock;
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(d) approve the company's annual operating budget;
(e) make any expenditure not otherwise subject to Board of
Director approval under this Section 1, which exceeds by more than 5
percent the amount set forth in the appropriate line item for such
expenditure in the annual budget of the Corporation;
(f) approve, enter into any agreements or other arrangements
with respect to, or make any payments, incur any expenses or disburse
any funds for any Capital Project or Drilling or Completion
Expenditures for any particular Oil and Gas Property the completion or
full capitalization of which can reasonably be expected to require the
Corporation or any of its Subsidiaries to expend; in the aggregate, in
excess of $20,000,000, or after Capital Calls in the aggregate amount
of $40,000,000 have been made (but not including for this purpose
expenditures in excess of $40,000,000 approved in accordance with this
subsection (f)), until the time the Investor Directors authorize new
dollar limits for permissible transactions without the approval of the
Investor Directors;
(g) incur, create, authorize, issue, assume or suffer to exist
any Debt or any Liens related thereto, or authorize or permit any
amendment, modification or change, or waiver of any right under, or
voluntarily fail to perform obligations under (when the means for such
performance is available), any agreement pertaining to such Debt other
than Debt or Liens incurred in connection with acquisitions that, in
the aggregate, do not exceed $40,000,000;
(h) sell, lease, transfer or otherwise dispose of (including
farm-outs), directly or indirectly, any assets, other than sales of
product produced in the ordinary course of business, with a fair market
value, in the aggregate, in excess of the lesser of (i) 25% of the
Corporation's present value of estimated pretax future revenues to be
generated from the production of proved reserves, net of estimated
production and future development costs, using prices and costs as of
the date of estimation without future escalation, without giving effect
to non-property related expenses such as general and administrative
expenses, debt service and depreciation, depletion and amortization,
and discounted using an annual discount rate of 10%, as determined by
the Corporation's independent petroleum engineer and utilizing such
pricing assumptions as a majority of the Board of Directors reasonably
determines are indicative of the Corporation's sales of hydrocarbons at
such time, and (ii) $80,000,000; or
(i) enter into (A) any consolidation or merger of the
Corporation with or into any other corporation or other entity or
person, or any other corporate reorganization, in which the
stockholders of the Corporation immediately prior to such
consolidation, merger or reorganization, own less than fifty percent
(50%) of the Corporation's voting power immediately after such
consolidation, merger or reorganization, or any transaction or series
of related transactions to which the Corporation is a party in which in
excess of fifty percent (50%) of the Corporation's voting power is
transferred; or (B) a sale, lease or other disposition of all or
substantially all of the consolidated assets of the Corporation.
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Section 2. Definitions. For purposes of this Article IV the following
terms shall have the meanings specified below:
"Affiliate": with respect to a specified Person, any Person which (a)
directly or indirectly controls, is controlled by or is under common control
with such specified Person, (b) owns or controls 10% or more of the outstanding
voting interests of such Person, (c) is an officer, director, general partner,
trustee, manager, administrator, representative or agent of such Person, or (d)
is an officer, director, trustee, manager, administrator, representative or
agent, or owns or controls 10% or more of the outstanding voting interests, of a
Person described in clause (a), (b) or (c) of this sentence or (e) is a Relative
of such specified Person or of ran individual described in clauses (a), (b), (c)
or (d) of this sentence. As used in this definition, the term "control" means
possession, directly or indirectly (through one or more intermediaries), of the
power to direct or cause the direction of management and policies of a Person
through an ownership of voting securities (or other ownership interests),
contracts, voting trust or otherwise. As used herein, "Relative" shall mean,
with respect to any individual, (i) such individual's spouse, (ii) any direct
descendent, parent, grandparent, great grandparent or sibling (in each case,
whether by blood or adoption) of such individual or such individual's spouse,
and (iii) any spouse of a person described in clause (ii) of this sentence.
"Capital Project": any project, transaction, agreement, arrangement or
series of transactions, agreements or arrangements to which the Corporation or a
Subsidiary of the Corporation is a party involving a capital expenditure,
including, without limitation (i) any purchase, lease, acquisition,
developmental drilling, completion and/or recompletion of proved developed
producing, proved developed non-producing, or proved undeveloped Oil and Gas
Properties; (ii) any purchase, lease or acquisition and/or exploratory drilling
of Oil and Gas Properties; and (iii) purchase, lease, acquisition, construction,
development or completion of transportation, compression, gathering or related
facilities for oil, gas or related products or the provision of services,
equipment or other Property for use in developing, completing or transporting
oil, gas or related products or otherwise directly related and ancillary to the
oil and gas business, including, without limitation, the transportation,
production, storage and handling of water utilized or disposed of in oil and gas
production.
"Capital Expenditures": costs and expenses associated with the
acquisition, development or redevelopment of the Oil and Gas Properties or any
other fixed or capital assets of the Corporation or any of its Subsidiaries
which pursuant to GAAP are required to be capitalized and subject to depletion,
depreciation or amortization.
"Debt": as to any Person, all indebtedness, liabilities and obligations
of such Person (excluding deferred taxes) whether primary or secondary, direct
or indirect, absolute or contingent (i) for borrowed money, (ii) constituting an
obligation to pay the deferred purchase price of Property, (iii) evidenced by
bonds, debentures, notes or similar instruments, (iv) arising under futures
contracts, swap contracts, commodity hedge agreements or similar speculative
agreements, (v) arising under leases serving as a source of financing or
otherwise capitalized in accordance with GAAP (but excluding customary oil, gas
or mineral leases and operating leases of equipment, (vi) arising under
conditional sales or other title retention agreements, (vii) under direct or
indirect guaranties of Debt of any Person or constituting obligations to
purchase or acquire or to otherwise protect or insure a creditor against loss in
respect of indebtedness of any Person (such as obligations under working capital
maintenance agreements, agreements to keep-well, agreements to purchase Debt,
assets, goods, securities or services, or take-or-pay agreements, but excluding
endorsements in the ordinary course of business of negotiable instruments in the
course of collection), (viii) with respect to letters of credit or applications
or reimbursement agreements therefor, or (ix) with respect to payments received
in consideration of oil,
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gas, or other minerals yet to be acquired or produced at the time of payment
(including without limitation obligations under "take-or-pay" contracts to
deliver gas in return for payments already received and the undischarged balance
of any production payment canted by such Person or for the creation of which
such Person directly or indirectly received payment) or with respect to other
obligations to deliver goods or services in consideration of advance payments
therefor.
"Drilling or Completion Expenditure": any expenditure incurred, or
required to be incurred by the Corporation or any Subsidiary, with respect to
exploratory drilling of Oil and Gas Properties or any developmental drilling,
completion and/or recompletion of proved developed producing, proved developed
non-producing, or proved undeveloped Oil and Gas Properties.
"Excepted Liens": (i) liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested in good
faith by appropriate action and if reserves adequate under GAAP shall have been
established therefor, (ii) legal or equitable encumbrances deemed to exist by
reason of the existence of any litigation or any other legal proceeding or
arising out of a judgment or award with respect to which an appeal is being
prosecuted in good faith and if reserves adequate under GAAP shall have been
established therefor, (iii) vendors', carriers', warehousemen's, repairmen's,
mechanics', workmen's, materialmen's construction or other like Liens arising by
operation of law in the ordinary course of business or incident to the
construction or improvement of any Property or operator and non-operator Liens
under joint operating agreements in respect of obligations which are not yet due
or which are contested in good faith by appropriate proceedings and if reserves
adequate under GAAP shall have been established therefor, and (iv) servitudes,
easements, restrictions, rights of way and other similar rights or liens in real
or immovable property or any interest therein, provided the same do not
materially impair the use of such property for the purposes for which it is
held.
"GAAP": generally accepted accounting principles as applied in the oil
and gas industry in the United States of America in effect from time to time.
"Investor Directors": those members of the Board of Directors elected
by the Investor Stockholders (as defined in the Stockholders' Agreement) to the
Board of Directors pursuant to Section 4.3(a) of that certain Stockholders'
Agreement between the Corporation and the stockholders of the Corporation whose
names appear on the signature page thereto (the "Stockholders' Agreement").
"Lien": any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting
Property.
"Oil and Gas Properties": all rights, estates, titles, and interests of
the Corporation or its Subsidiaries, in and to any oil, gas, or other mineral
fee or leasehold estates, any royalty, overriding royalty interest, production
payment, net profit interest, mineral fee interest, and other rights therein,
and all real and personal property of any kind or nature associated therewith,
including, but not limited to, all proceeds from the production or sale of oil,
gas and other hydrocarbons, all easements, permits, licenses,
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servitudes and rights of way, all pipelines, gathering lines, trunk lines,
lateral lines, compressors, dehydration and pumping equipment, tanks, storage
facilities and plants, and all options, rights of refusal, contract rights,
accounts receivable and general intangibles arising from any contracts or
agreements relating thereto.
"Person": any corporation, natural person, firm, joint venture,
association, partnership, trust, unincorporated organization, government or any
department or agency of any government or any other form of entity.
"Property": any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Stockholders' Agreement" means that certain Stockholders' Agreement
dated as of August 18, 1998 among the Corporation and its stockholders, as such
may be supplemented and amended from time to time.
"Subsidiary" or "Subsidiaries": with respect to any Person, any
corporation, association, partnership, limited liability company, joint venture,
or other business or corporate entity, enterprise or organization of which the
management is directly or indirectly (through one or more intermediaries)
controlled by such Person or fifty percent or more of the equity interests in
which is directly or indirectly (through one or more intermediaries) owned by
such Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Article shall refer to a Subsidiary or Subsidiaries of
the Corporation.
Section 3. Provisions Cumulative. The provisions in this Article IV are
not intended to be an exclusive statement of all of the actions of the
Corporation which require prior approval of the Board of Directors, and this
Article IV shall be deemed to be cumulative of any and all requirements imposed
by the Certificate of Incorporation, other provisions of these Bylaws or
applicable law with respect to Board of Director approval of actions taken by
the Corporation.
ARTICLE V
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any directs or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by prepaid telegram, facsimile, or
reputable courier service.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE VI
OFFICERS
Section 1. Number. Term of Office. The officers of the Corporation
shall be a Chairman of the Board, a Chief Executive Officer, one or more Vice
Presidents, a Treasurer, a Secretary and such other officers or agents with such
titles and such duties as the Board of Directors may from time to time
determine, each to have such authority, functions or duties as in these Bylaws
provided or as the Board may from time to time determine, and each to hold
office for such term as may be prescribed by the Board and until such person's
successor shall have been chosen and shall qualify, or until such person's death
or resignation, or until such person's removal in the manner hereinafter
provided. The Chairman of the Board shall be elected from among the directors.
One person may hold the offices and perform the duties of any two or more of
said officers; provided, however, that no officer shall execute, acknowledge or
verify any instrument in more than one capacity if such instrument is required
by law, the Certificate of Incorporation of the Corporation or these Bylaws to
be executed, acknowledged or verified by two or more officers. The Board may
from time to time authorize any officer to appoint and remove any such other
officers and agents and to prescribe their powers and duties. The Board may
require any officer or agent to give security for the faithful performance of
such person's duties.
Section 2. Removal. Any officer may be removed, either with or without
cause, by the Board of Directors at any meeting thereof called for that purpose,
or, except in the case of any officer elected by the Board, by any committee or
superior officer upon whom such power may be conferred by the Board.
Section 3. Resignation. Any officer may at any time resign by giving
written notice to the Board of Directors, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take effect at the date
of receipt of such notice or at any later date specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the tenor by the Board of Directors in the manner prescribed in these Bylaws
for election to such office.
Section 5. Chief Executive Officer and President. The Chief Executive
Officer and President (which shall be the same individual, and which titles may
be used together or interchangeably) shall be the chief executive officer of the
Corporation and as such shall have general supervision and direction of the
business and affairs of the Corporation, subject to the control of the Board of
Directors. The Chief Executive Officer shall, if present and in the absence of
the Chairman of the Board, preside at meetings of the stockholders, meetings of
the Board. The Chief Executive Officer shall perform such other duties as the
Board may from time to time determine. The Chief Executive Officer may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board or any committee thereof empowered to
authorize the same.
Section 6. Chairman of the Board. The Chairman of the Board shall, if
present, preside at meetings of the stockholders and meetings of the Board. The
Chairman of the Board shall counsel with
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and advise the Chief Executive Officer and perform such other duties as the
Chief Executive Officer or the Board may from time to time determine.
Section 7. Vice Presidents. Each Vice President shall have such powers
and duties as shall be prescribed by the Chief Executive Officer, the Chairman
of the Board or the Board of Directors. Any Vice President may sign and execute
in the name of the Corporation deeds, mortgages, bonds, contracts or other
instruments authorized by the Board or any committee thereof empowered to
authorize the same.
Section 8. Treasurer. The Treasurer shall perform all duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to the Treasurer by the Chief Executive Officer, the Chairman of the
Board or the Board of Directors.
Section 9. Secretary. It shall be the duty of the Secretary to act as
secretary at all meetings of the Board of Directors and of the stockholders and
to record the proceedings of such meetings in a book or books to be kept for
that purpose; the Secretary shall see that all notices required to be given by
the Corporation are duly given and served; the Secretary shall be custodian of
the seal of the Corporation and shall affix the seal or cause it to be affixed
to all certificates of stock of the Corporation (unless the seal of the
Corporation on such certificates shall be a facsimile, as hereinafter provided)
and to all documents, the execution of which on behalf of the Corporation under
its seal is duly authorized in accordance with the provisions of these Bylaws.
The Secretary shall have charge of the stock ledger and also of the other books,
records and papers of the Corporation and shall see that the reports, statements
and other documents required by law are properly kept and filed; and the
Secretary shall in general perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to such
person by the Chief Executive Officer, the Chairman of the Board or the Board of
Directors.
Section 10. Assistant Treasurers and Secretaries. The Assistant
Treasurers and the Assistant Secretaries shall perform such duties as shall be
assigned to them by the Treasurer or Secretary, respectively, or by the Chief
Executive Officer, the Chairman of the Board or the Board of Directors.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS OFFICERS EMPLOYERS ND AGENTS
Section 1. Power to Indemnify in Actions, Suits or Proceeding Other
Than Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VII, 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 or officer 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 awed is 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
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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.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VII, 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 or officer 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 for negligence or
misconduct in the performance of his duty 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.
Section 3. Authorization of Indemnification. Any indemnification under
this Article VII (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 or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VII. Such determination shall be made (i) 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 (ii) 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 (iii) by the
stockholders. To the extent that a director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 or Section 2, 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 in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation, or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was
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serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Sections 1 or 2 of this
Article VII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
1 and 2 of this Article VII. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the director or officer
is proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VII, as the case may be.
Neither a contrary determination in the specific case under Section 3 of this
Article VII nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit or
proceeding shall 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 this Article VII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VII 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, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the persons
specified in Sections 1 and 2 of this Article VII shall be made to the fullest
extent permitted by law. The provisions of this Article VII shall not be deemed
to preclude the indemnification of any person who is not specified in Sections 1
or 2 of this Article VII but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan 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 or the obligation to indemnify him against such
liability under the provisions of this Article VII.
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Section 9. Certain Definitions. For purposes of this Article VII,
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, 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 section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VII, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer 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
VII.
Section 10. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 5 hereof), the
Corporation shall not be obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and the advancement of expenses to employees
and agents of the Corporation similar to those conferred in this Article VII to
directors and officers of the Corporation.
ARTICLE VIII
SEAL
The corporate seal shall have inscribed thereon the name of the
corporation and shall be in such form as may be approved from time to time by
the Board of Directors. The seal may be used by causing it or a facsimile
thereof to be impressed, acted, imprinted or in any manner reproduced.
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ARTICLE IX
CONSENTS
Any action which may be taken at a meeting of the Board of Directors or
any committee thereof or the stockholders of the Corporation, may be taken
without a meeting in compliance with Delaware General Corporation Law.
ARTICLE X
AMENDMENTS
Subject to Article IV hereof, these bylaws may be altered, amended or
repealed or new bylaws may be adopted by the approval of a majority of the
members of the Board of Directors at any regular meeting of the Board of
Directors or at any special meeting of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new bylaws be contained in the
notice of such special meeting; provided, however, that any alteration,
amendment or repeal of Article II Sections 2 and 5, Article III Section 6,
Article IV or this Article X may be adopted only by the unanimous approval of
the members of the Board of Directors.
ADOPTED, as of the 18th day of August, 1998.
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