EXHIBIT 3.1
RESTATED
BY-LAWS
OF
ST. MARY
LAND & EXPLORATION COMPANY
(amended
as of December 18, 2008)
________________
NAME
1. The
name of this Corporation is St. Mary Land & Exploration
Company.
OFFICE
2. This
Corporation may establish or discontinue, from time to time, such offices and
places of business within or without the State of Delaware as the Board of
Directors may deem proper for the conduct of the Corporation’s
business.
SEAL
3. The
corporate seal of this Corporation shall have inscribed thereon the name of this
Corporation and the year of its creation and the words “Corporate Seal,
Delaware.”
STOCKHOLDERS’
MEETINGS
4.
(a) The annual
meeting of the Stockholders shall be held on the third Thursday in May of each
year, or at such other time, at the principal office of the Corporation, or such
other place, within or without the State of Colorado, as the Board of Directors
may determine, when the Stockholders shall elect a Board of Directors for the
ensuing year and transact such other business as may come before
it.
(b) Special
meetings of the Stockholders shall be held at the place prescribed for the
annual meetings, unless otherwise ordered by the Board of
Directors, and may be called by the Chairman of the Board and the Chief
Executive Officer or on the written request of any four Directors who may
include the Chairman of the Board or the Chief Executive Officer.
(c) Except
as otherwise provided by law or the Certificate of Incorporation, the holders of
one-third (1/3) of the shares of the capital stock entitled to vote at the
meeting present in person or by proxy shall constitute a quorum at all meetings
of the Stockholders. In the absence of a quorum, the holders of a
majority of such shares of stock present in person or by proxy may adjourn any
meeting from time to time, until a quorum shall be present. At any
such
-1-
adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called. No
notice of any adjourned meeting need be given other than by announcement at the
meeting that is being adjourned, provided that if the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, then a notice of the adjourned meeting shall be given
to each Stockholder of record entitled to vote at the meeting.
(d) Each
Stockholder of record, as determined pursuant to Article 17 of these By-Laws,
shall be entitled to one vote either in person or by proxy for each share of
capital stock registered in his name on the books of the Corporation, provided,
that, each Stockholder of record of a fractional share shall be entitled to a
vote equal to such fractional share. Except as otherwise provided by
law, by the Certificate of Incorporation or by Article 5 of these By-Laws, all
elections of Directors and all other actions to be taken by Stockholders shall
be decided by the vote of the holders of a majority of the shares of capital
stock present in person or by proxy at the meeting and entitled to vote in the
election or on the action.
(e) Notice
of the meetings and the conduct of the same shall be as prescribed by the Board
of Directors, subject to applicable law and the provisions of these
By-Laws.
(f) Any
action required to be taken, or which may be taken, at any 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 shares of outstanding capital 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 of stock entitled to vote thereon
were present and voted; provided, that prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent shall be given
to those Stockholders who have not consented in writing.
(g) The
following provisions shall apply with respect to the notice and conduct of
business at a meeting of Stockholders.
(i) Annual Meetings of
Stockholders.
(A) Nominations
of persons for election to the Board of Directors and the proposal of other
business to be considered by the Stockholders may be made at an annual meeting
of Stockholders (a) pursuant to the Corporation’s notice of meeting (or any
supplement thereto), (b) by or at the direction of the Board of Directors or (c)
by any Stockholder of the Corporation who (i) was a Stockholder of record at the
time of giving of notice provided for in this By-Law and at the time of the
annual meeting, (ii) is entitled to vote at the meeting and (iii) complies with
the notice procedures set forth in this By-Law as to such business or
nomination. Clause (c) of the immediately preceding sentence, as
affected by the notice procedures and other provisions set forth in Sections
4(g)(i)(B) and 4(g)(i)(C) below, shall be the exclusive means for a Stockholder
to make nominations or submit other business (other than matters properly
brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and included in the Corporation’s notice of meeting)
before an annual meeting of Stockholders.
-2-
(B) Without
qualification, for any nominations or any other business to be properly brought
before an annual meeting by a Stockholder pursuant to Section 4(g)(i)(A)(c) of
these By-Laws, the Stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such other business must otherwise be a
proper matter for Stockholder action. To be timely, a Stockholder’s
notice to the Secretary shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation not earlier than the close of
business on the 105th day and
not later than the close of business on the 75th day
prior to the first anniversary date of the immediately preceding annual meeting
of the Stockholders; provided, however, that in the event that the date of the
annual meeting is called for a date that is not within twenty (20) days before
or after such anniversary date, in order to be timely the notice by the
Stockholder must be so delivered or received not earlier than the close of
business on the 105th day
prior to the date of such annual meeting and not later than the close of
business on the later of the 75th day
prior to the date of such annual meeting or, if the first public announcement of
the date of such annual meeting is less than eighty-five (85) days prior to the
date of such annual meeting, the 10th day
following the day on which public announcement of the date of such annual
meeting is first made by the Corporation. In no event shall any
adjournment or postponement of an annual meeting or the announcement thereof
commence a new time period for the giving of a Stockholder’s notice as described
above. To be in proper form, a Stockholder’s notice (whether given
pursuant to this Section 4(g)(i)(B) or Section 4(g)(ii) of these By-Laws) to the
Secretary must: (a) set forth, as to the Stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such Stockholder, as they appear on the Corporation’s
books, and of such beneficial owner, if any, (ii) (A) the class or series and
number of shares of the Corporation which are, directly or indirectly, owned
beneficially and of record by such Stockholder and such beneficial owner, (B)
any option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by such Stockholder and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such Stockholder
has a right to vote any shares of any security of the Corporation, (D) any short
or long interest in any security of the Corporation (for purposes of this By-Law
a person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security; likewise, for
purposes of this By-Law a person shall be deemed to have a long interest in a
security if such person directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has the opportunity to
profit or share in any profit derived from any increase in the value of the
subject security), (E) any rights to dividends on the shares of the Corporation
owned beneficially by such Stockholder that are separated or separable from the
underlying shares of the Corporation, (F) any proportionate interest in shares
of the Corporation or Derivative Instruments held, directly or indirectly, by a
general or limited partnership in which such
-3-
Stockholder
is a general partner or, directly or indirectly, beneficially owns an interest
in a general partner, and (G) any performance-related fees (other than an
asset-based fee) that such Stockholder is entitled to based on any increase or
decrease in the value of shares of the Corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such
interests held by members of such Stockholder’s immediate family sharing the
same household (which information shall be supplemented by such Stockholder and
beneficial owner, if any, not later than 10 days after the record date for the
meeting to disclose such ownership as of the record date), and (iii) any other
information relating to such Stockholder and beneficial owner, if any, that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of Directors in a contested election pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; (b) if the notice relates to any business other than a nomination of
a Director or Directors that the Stockholder proposes to bring before the
meeting, set forth (i) a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest of such Stockholder and beneficial owner, if any, in such
business and (ii) a description of all agreements, arrangements and
understandings between such Stockholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal
of such business by such Stockholder; (c) set forth, as to each person, if any,
whom the Stockholder proposes to nominate for election or reelection to the
Board of Directors (i) all information relating to such person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of Directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder (including such person’s written consent to
being named in the proxy statement as a nominee and to serving as a Director if
elected) and (ii) a description of all direct and indirect compensation and
other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such
Stockholder and beneficial owner, if any, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404 of
Regulation S-K under the Exchange Act if the Stockholder making the nomination
and any beneficial owner on whose behalf the nomination is made, if any, or any
affiliate or associate thereof or person acting in concert therewith, were the
“registrant” for purposes of such rule and the nominee were a Director or
executive officer of such registrant; and (d) with respect to each nominee for
election or reelection to the Board of Directors, include a completed and signed
questionnaire, representation and agreement required by Section 4(h) of these
By-Laws. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as an independent director of the
Corporation or that could be material to a reasonable Stockholder’s
understanding of the independence, or lack thereof, of such
nominee.
(C) Notwithstanding
anything in the second sentence of Section 4(g)(i)(B) of these By-Laws to the
contrary, in the event that the number of Directors to be elected to the Board
of Directors is increased and there is no public announcement by the
-4-
Corporation
naming all of the nominees for Director or specifying the size of the increased
Board of Directors at least 85 days prior to the first anniversary of the
preceding year’s annual meeting, a Stockholder’s notice required by this By-Law
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to or received by
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(ii) Special Meetings of
Stockholders.
Only such
business shall be conducted at a special meeting of Stockholders as shall have
been brought before the meeting pursuant to the Corporation’s notice of
meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of Stockholders at which Directors
are to be elected pursuant to the Corporation’s notice of meeting (or any
supplement thereto) (a) by or at the direction of the Board of Directors, or (b)
provided that the Board of Directors has determined that Directors shall be
elected at such meeting, by any Stockholder of the Corporation who (i) is a
Stockholder of record at the time of giving of notice provided for in this
Section 4(g)(ii) and at the time of the special meeting, (ii) is entitled to
vote at the meeting, and (iii) complies with the notice procedures set forth in
Section 4(g) of these By-Laws as to
such nomination. In the event the Corporation calls a special meeting
of Stockholders for the purpose of electing one or more Directors to the Board
of Directors, any such Stockholder may nominate a person or persons (as the case
may be) for election to such position(s) as specified in the Corporation’s
notice of meeting, if the Stockholder’s notice required by Section 4(g)(i)(B) of
these By-Laws with respect to any nomination (including the completed and signed
questionnaire, representation and agreement required by Section 4(h) of these
By-Laws) shall be delivered to or received by the Secretary at the principal
executive offices of the Corporation not earlier than the close of business on
the 105th day
prior to the date of such special meeting and not later than the close of
business on the later of the 75th day
prior to the date of such special meeting or, if the first public announcement
of the date of such special meeting is less than eighty-five (85) days prior to
the date of such special meeting, the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall any adjournment or
postponement of a special meeting or the announcement thereof commence a new
time period for the giving of a Stockholder’s notice as described above.
(iii) General.
(A) Only
such persons who are nominated in accordance with the procedures set forth in
Section 4(g) of these By-Laws shall be eligible to serve as Directors and only
such business shall be conducted at a meeting of Stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in
Section 4(g) of these By-Laws. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in Section 4(g) of these
By-Laws
-5-
and,
if any proposed nomination or business is not in compliance with Section 4(g) of
these By-Laws, to declare that such defective proposal or nomination shall be
disregarded.
(B) For
purposes of Section 4(g) of these By-Laws, “public announcement” shall mean
disclosure in a press release reported by a national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules
and regulations promulgated thereunder.
(C) Notwithstanding
the foregoing provisions of these By-Laws, a Stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-Law; provided,
however, that any references in these By-Laws to the Exchange Act or the rules
promulgated thereunder are not intended to and shall not limit the requirements
applicable to nominations or proposals as to any other business to be considered
pursuant to Section 4(g)(i)(A)(c) or Section 4(g)(ii) of these
By-Laws. Nothing in this By-Law shall be deemed to affect any rights
(i) of Stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of preferred stock if and to the extent provided for under law,
the Certificate of Incorporation or these By-Laws.
(h) To
be eligible to be a nominee for election or reelection as a Director of the
Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 4(g) of these By-Laws) to the
Secretary at the principal executive offices of the Corporation a written
questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination
is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the form
provided by the Secretary upon written request) that such person (a) is not and
will not become a party to (i) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to how
such person, if elected as a Director of the Corporation, will act or vote on
any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation or (ii) any Voting Commitment that could limit or interfere with
such person’s ability to comply, if elected as a Director of the Corporation,
with such person’s fiduciary duties under applicable law, (b) is not and will
not become a party to any agreement, arrangement or understanding with any
person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with
service or action as a Director that has not been disclosed therein, and (c)
would be in compliance, if elected as a Director of the Corporation, and will
comply with all applicable publicly disclosed corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies and
guidelines of the Corporation (with such representation and agreement as to
compliance to be with respect to such person’s individual capacity and on behalf
of any person or entity on whose behalf the nomination is being
made).
-6-
DIRECTORS
5.
(a) The
property and business of this Corporation shall be managed by a Board of at
least three Directors.
(b) The
number of Directors may be fixed from time to time by resolution by the Board of
Directors but shall not be less than three; the Board of Directors may at any
regular or special meeting increase its number by electing additional members to
hold office until the next annual meeting of the Stockholders, or until their
successors shall be elected and qualified or until their earlier resignation or
removal.
(c) Regular
meetings of the Board of Directors shall be held at such times as may be
determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by
law, any business may be transacted at any regular meeting of the Board of
Directors.
(d) Special
meetings of the Board of Directors shall be called by the Secretary on the
request of the Chairman of the Board or the Chief Executive Officer, or on the
request in writing of any two other Directors stating the purpose or purposes of
such meeting. Notice of any special meeting shall be in a form
approved by the Chairman of the Board. Notices of special meetings
shall be mailed to each Director, addressed to him at his residence or usual
place of business, not later than three (3) days before the day on which the
meeting is to be held, or shall be sent to him at such place by electronic mail
or other form of electronic transmission, facsimile, telegraph, cable or other
form of recorded communication or be delivered personally or by telephone, not
later than the day before such date of meeting. Notice of any meeting
of the Board of Directors need not be given to any Director if he shall sign or
indicate by electronic transmission a written waiver thereof either before or
after the time stated therein, or if he shall attend a meeting, except when he
attends such 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 special meeting of the Board of Directors need be
specified in any notice or written waiver of notice. Unless limited
by law, by the Certificate of Incorporation or by these By-Laws, any and all
business may be transacted at any special meeting.
(e) A
majority of the whole Board of Directors (the whole Board of Directors being the
number of Directors fixed by resolution of the Board of Directors from time to
time) shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless otherwise provided by law, the Certificate of Incorporation
or these By-Laws. A majority of the Directors present at any meeting
may adjourn the meeting from time to time without further notice other than
announcement at the meeting. If at any meeting a quorum is not
present, a majority of the Directors present may adjourn the meeting from time
to time without notice other than announcement at the meeting of its adjournment
until a quorum is present.
-7-
(f) Any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board of Directors, or of such committee, as the case may be,
consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of the proceedings of the Board of Directors or of such
committee. Furthermore, members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors, or of
such committee, by means of conference telephone or other similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
(g) In
case of any increase in the number of Directors, or of any vacancy in the Board
of Directors, the additional Director or Directors shall be elected, or, as the
case may be, the vacancy or vacancies shall be filled by the Board of Directors
at any meeting by the affirmative vote of a majority of the remaining Directors,
notwithstanding that the remaining Directors may be less than a quorum, or by
the sole remaining Director. The Directors so chosen shall hold
office until the next annual meeting of Stockholders and until their successors
are elected and qualified or until their earlier resignation or
removal.
(h) By
resolution of the Board of Directors, any Director may be paid any one or more
of the following: his expenses, if any, of attendance at meetings; a fixed sum
for attendance at meetings; or a stated salary as Director. The
amounts and forms of such compensation or reimbursement of expenses, which may
be in cash or shares of the Corporation’s stock or in another form, shall be
determined by, or be in accordance with the direction of, the Board of
Directors. Nothing herein contained shall be construed to preclude
any Director from serving the Corporation in any capacity as an officer,
employee, agent or otherwise, and receiving compensation therefor.
(i) The
Board of Directors shall have power to elect or appoint all necessary officers
and committees, to employ agents, factors, clerks and workmen, to require any of
them to give such bond for the faithful discharge of their duties as may be
deemed wise, to fix their compensation, to prescribe their duties, to dismiss
any appointed officer or employee, and generally to control all the officers of
the Corporation.
(j) The
Board of Directors may, by resolution passed by a majority of the whole Board of
Directors as specified in the Certificate of Incorporation, designate one or
more committees, each to consist of one or more of the Directors of the
Corporation, and may appoint chairmen of any such committees. To the
extent provided in the resolution designating such committee, and to the extent
permitted by law, each such committee 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. 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. Such committees
shall include an audit committee, a compensation committee, a nominating and
corporate governance committee and any other committee of independent Directors
required by applicable securities laws, rules and regulations and applicable
rules and
-8-
regulations
of any securities exchange or market on which the Corporation’s securities may
be listed or traded, and the functions, duties, responsibilities and Director
composition thereof shall be in accordance with such applicable laws, rules and
regulations.
(k) The
Board of Directors, in addition to the powers and authority expressly conferred
upon them by these By-Laws, may exercise all such powers and do all such things
as may be exercised or done by the Corporation, but subject, nevertheless, to
the provisions of the law, of the Certificate of Incorporation, and of these
By-Laws.
OFFICERS
6. The
officers of the corporation shall be a Chairman of the Board, a Chief Executive
Officer, a President, one or more Vice Presidents, a Secretary, a Treasurer, one
or more Assistant Secretaries, one or more Assistant Treasurers, a Controller
and such other officers as may from time to time be elected or appointed by the
Board of Directors. The determination of whether or not to fill such
positions shall be within the discretion of the Board of Directors, except as
otherwise provided by law. Any offices except those of President and
Vice President or President and Secretary may be held by the same
person. All officers shall serve at the pleasure of the Board of
Directors. Any officer may be removed by the Board of Directors at
anytime with or without cause. A vacancy in any office shall be
filled by the Board of Directors.
CHAIRMAN
OF THE BOARD
7. The
Chairman of the Board shall preside at all meetings of the Stockholders and at
all meetings of the Board of Directors, and shall have such other powers and
duties as may be prescribed by the Board of Directors or the
By-Laws.
CHIEF
EXECUTIVE OFFICER
8. The
Chief Executive Officer shall be a member of the Board of Directors, shall
exercise general supervision and administration over all of the Corporation’s
affairs, and shall have such further duties as are incident to the office of
chief executive officer of a corporation or are prescribed by law or as shall
from time to time be designated by the Board of Directors. He shall,
in the absence of the Chairman of the Board, preside at all meetings of the
Stockholders and Directors. He shall have the authority to sign or
countersign as may be necessary all such bills, notes, checks, contracts and
other instruments as may pertain to the business and affairs of the Corporation,
except where the signing thereof shall be expressly delegated to some other
officer or agent by the Board of Directors or required by law to be otherwise
signed or executed, and he shall have the authority to sign all contracts,
orders, deeds, liens, licenses and other instruments of a special nature, and,
unless otherwise provided by law or by the Board of Directors, he may authorize
any officer, employee or agent of the Corporation to sign, execute and
acknowledge in his place and stead all such documents and
instruments. He shall, as far as may be possible and desirable,
familiarize himself with and exercise supervision over the affairs of this or
any other corporation in which this Corporation may be interested.
-9-
PRESIDENT
9. The
President shall have such powers and perform such duties as shall from time to
time be designated by the Board of Directors or the Chief Executive Officer, or
are prescribed by law. Subject to the foregoing, the President shall
have such duties as are incident to the office of president of a corporation,
those duties assigned to him by other provisions of these By-Laws, and such
other duties as may from time to time be assigned to him either directly or
indirectly by the Board of Directors or the Chief Executive
Officer. He shall have the authority to sign or countersign as may be
necessary all stock certificates, contracts or other documents and instruments
of the Corporation, except where the signing thereof shall be expressly
delegated to some other officer or agent by the Board of Directors or the Chief
Executive Officer or required by law to be otherwise signed or executed, and,
unless otherwise provided by law or by the Board of Directors or the Chief
Executive Officer, he may authorize any officer, employee or agent of the
Corporation to sign, execute and acknowledge in his place and stead all such
documents and instruments. In the absence of the Chief Executive
Officer or in the event of his inability or refusal to act, the President shall
perform the duties and discharge the responsibilities of the Chief Executive
Officer.
VICE-PRESIDENT
10. In
the absence of the Chief Executive Officer and the President or in the event of
his or their inability or refusal to act, the Vice-President, if any (or, if
there be more than one, the Vice Presidents in the order designated by the Chief
Executive Officer or the President, subject to revision by the Board of
Directors, and, absent such designation or revision, in the order of their first
election to that office), shall perform the duties and discharge the
responsibilities of the President. They shall have such other duties
and powers as shall from time to time be designated by the Board of Directors or
by the Chief Executive Officer or the President.
SECRETARY
11. The
Secretary shall be sworn to the faithful discharge of his duties and shall keep
full minutes of all the meetings of the Stockholders and of the Board of
Directors, and shall perform the same duty for the standing committees when
required. He shall issue all calls for meetings of the Stockholders
and Directors and shall notify all officers and Directors of their
election. He shall have charge of the seal of the Corporation and
affix the same to any instrument requiring it. He shall have charge
of the stock certificate books, stock transfer books, and stock ledgers, and
such other books and papers as the Board of Directors may place in his
charge. He shall make such reports to the Board of Directors as they
may require, and he shall also prepare such reports and statements as may be
required by the provisions of the law.
ASSISTANT
SECRETARY
12. The
Assistant Secretary (or if there be more than one, the Assistant Secretaries in
the order designated by the Chief Executive Officer, subject to revision by the
Board of Directors, and, absent such designation or revision, in the order of
their first election to that office) shall, in the absence, disability, or
refusal to act of the Secretary, be vested with all the powers of the
-10-
Secretary
and shall perform all his duties. He shall assist the Secretary in
the performance of his duties, and shall have such powers and perform such other
duties as the Board of Directors may from time to time direct.
TREASURER
13. The
Treasurer shall be the custodian of all the funds and securities of the
Corporation and shall keep full and accurate records and accounts in books
provided for that purpose of all receipts, disbursements, credits, assets,
liabilities and general financial transactions of the Corporation. He
shall endorse for collection or deposit, to the credit of the Corporation, all
bills, notes, checks and other negotiable instruments of the Corporation coming
into his hands in such depositories and safe deposits as may be designated by
the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the specific instructions of the Chief
Executive Officer, the President, any Vice-President in charge of financial
matters of the Corporation, or the Board of Directors or any committee
established thereby, taking proper vouchers for all such disbursements, and he
shall give bond to the Corporation in such sum and with such surety as shall be
satisfactory to the proper officers of the Corporation.
ASSISTANT
TREASURER
14. The
Assistant Treasurer (or, if there be more than one, the Assistant Treasurers in
the order designated by the Chief Executive Officer, subject to revision by the
Board of Directors, and, absent such designation or revision, in the order of
their first election to that office) shall, in the absence, disability or
refusal to act of the Treasurer, be vested with all the powers of the Treasurer
and shall perform all his duties. He shall assist the Treasurer in
the performance of his duties, and shall have such powers and perform such other
duties as the Board of Directors, the Chief Executive Officer, the President, or
any Vice-President in charge of financial matters of the Corporation may from
time to time direct.
CONTROLLER
15. The
Controller shall exercise and perform such powers and duties with respect to the
administration of the business and affairs of the Corporation as may from time
to time be assigned to him by the Board of Directors, the Chief Executive
Officer, the President, or any Vice-President in charge of financial matters of
the Corporation.
OFFICER
PRO TEM
16. In
the absence of any officer, the Board of Directors may delegate his powers and
duties to any other officers or to any Director, for the time
being.
STOCK
17. (a) The
shares of the Corporation’s stock may be in either certificated or
uncertificated form. Any shares represented by a certificate may not
become uncertificated until the certificate therefore is surrendered to the
Corporation, subject to the provisions of Section
-11-
17(d)
hereof. Any certificates representing shares of stock shall be in
such form as the Board of Directors shall from time to time approve, signed by
or in the name of the Corporation by the President or any Vice-President and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
certifying the number of shares owned by the Stockholder.
(b) Any
or all the signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
(c) A
record of the name and address of each holder of certificated or uncertificated
shares, the number of shares held, and the date of issue thereof, shall be made
on the Corporation’s books. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof, and accordingly, shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person whether or not
it shall have express or other notice thereof, except as required by the laws of
Delaware.
(d) Any
person claiming a stock certificate or uncertificated shares in lieu of a stock
certificate lost, stolen, mutilated or destroyed shall give the Corporation an
affidavit as to his ownership of the certificate and of the facts as to its
loss, theft, mutilation or destruction. He shall also, if required by
the Board of Directors, give the Corporation a bond, in such form and amount as
may be approved by the Board of Directors, sufficient to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss or theft of the certificate or the issuance of a new
certificate. Upon production of any required evidence and
indemnification, the Corporation may issue a new certificate or certificates of
stock or provide for uncertificated shares in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen, mutilated or destroyed.
(e) The
Corporation may maintain one or more transfer offices or agencies, each under
the control of a transfer agent designated by the Board of Directors, where the
shares of stock of the Corporation shall be transferable. The
Corporation may also maintain one or more registry offices, each under the
control of a registrar designated by the Board of Directors, wherein such shares
of stock shall be registered.
(f) Transfer
of shares shall, except as provided in Section 17(d) hereof, be made on the
books of the Corporation only by direction of the holder, whether named in the
certificate or on the books of the Corporation as a holder of uncertificated
shares, or his attorney, lawfully constituted in writing, upon presentation of
proper transfer instructions and proper evidence of succession, assignment or
authority to transfer the shares and, if held in certificate form, only upon the
surrender for cancellation of the certificate therefor, duly endorsed or
accompanied by a written assignment of the shares evidenced
thereby. Upon the surrender of any certificate for the transfer of
stock, such certificate shall be marked “Cancelled” and filed with the stock
records of the Corporation.
-12-
(g) In
order that the Corporation may determine the Stockholders entitled to notice of
or to vote at any meeting of Stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action.
(h) In
order that the Corporation may determine the Stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. Any Stockholder of record seeking to have the Stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record
date. Such a request shall include (i) a description of the action
that such Stockholder proposes to take by written consent, including the text of
any proposal to be submitted to Stockholders, (ii) the information required by
Section 4(g)(i)(B) of these By-Laws to be contained in a Stockholder’s notice of
business to be brought before a meeting of Stockholders, and (iii) any other
information relating to the Stockholder, the beneficial owner, if any, on whose
behalf the proposal is made, or the proposal that would be required to be
disclosed in a proxy statement or other filings in connection with the
solicitation of proxies or consents relating to the proposed action pursuant to
Section 14 of the Exchange Act and the rules and regulations
thereunder. The Board of Directors shall promptly, but in all events
within ten (10) days after the date on which such a written request complying
with these By-Laws is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors
within ten (10) days of the date on which such a written request complying with
these By-Laws is received, the record date for determining Stockholders entitled
to consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by applicable law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery at its
principal executive offices. Delivery shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors pursuant to the first sentence of this
Section 17(h) and prior action by the Board of Directors is required by
applicable law, the record date for determining Stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking such prior action.
INSPECTION
OF BOOKS AND ACCOUNTS
18. Except
as otherwise provided by law and the Certificate of Incorporation, the Directors
shall determine from time to time whether, and, if allowed, when and under what
conditions and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the Stockholders, and the Stockholders’
rights in this respect are and shall be restricted and limited
accordingly.
-13-
ALTERATION
AND AMENDMENT
19. The
Board of Directors may by a majority vote of the whole Board, adopt, amend or
repeal these By-Laws at any regular meeting or at any special
meeting.
DEFERRED
MEETINGS
20. If
any meeting provided for in these By-Laws should fall upon a legal holiday, the
same shall be held upon the next succeeding business day at the same hour and
place.
INDEMNIFICATION
OF OFFICERS, DIRECTORS EMPLOYEES AND AGENTS: INSURANCE
21. (a) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a Director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
-14-
(c) To
the extent that a Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b), 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.
(d) Any
indemnification under subsections (a) and (b) (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination
shall be made (1) 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 (2) 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.
(e) Expenses
incurred by an officer or Director in defending a civil or criminal 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 in this Article 21. Such expenses incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
(f) The
rights to indemnification and advancement of expenses provided by, or granted
pursuant to, this Article 21 (i) shall be contract rights based upon good and
valuable consideration, pursuant to which a person may bring suit as if the
provisions of this Article 21 were set forth in a separate written contract
between such person and the Corporation, (ii) shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of Stockholders or
disinterested Directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, (iii)
shall be deemed to have fully vested at the time the person seeking
indemnification or advancement of expenses first assumes his or her position as
a Director, officer, employee or agent of the Corporation, and (iv) shall
continue as to a person who has ceased to be a Director, officer, employee or
agent of the Corporation, and shall inure to the benefit of the heirs, executors
and administrators of such a person. Any repeal or modification of
the provisions of this Article 21 shall be prospective only and shall not in any
way diminish or adversely affect the rights of any person that are in effect
hereunder with respect to any proceeding (regardless of when such proceeding is
first threatened, commenced or completed) arising out of or relating to any act
or omission occurring prior to such repeal or modification.
(g) The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust 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,
-15-
whether
or not the Corporation would have the power to indemnify him against such
liability under the provisions of this Article 21.
(h) The
provisions of this Article 21 shall be separable and the invalidity of all or
any part thereof as applied to any particular type of liability or any
particular person shall not preclude application of any remaining portion
thereof to such situation or such person, nor application of the provisions of
this Article 21 to any other situation or person.
CONFLICTS
OF INTEREST
22. No
Director, officer or employee may pursue for his or her own account a business
or investment opportunity if he or she has obtained knowledge of such
opportunity through his or her affiliation with the Corporation. No
officer or employee of the Corporation may pursue for his own account an oil and
gas opportunity as to which he or she did not obtain knowledge through his or
her affiliation with the Corporation unless (a) with respect to a non-officer of
the Corporation, such employee’s pursuit of such opportunity has been approved
by a senior officer of the Corporation with full knowledge of such opportunity
and (b) with respect to an officer of the Corporation, such officer’s pursuit of
such opportunity has been approved by the Board of Directors. The
foregoing restrictions shall not apply to the acquisition of less than one
percent of the publicly traded securities of another company.
EXECUTIVE
COMMITTEE
23. The
Executive Committee shall consist of at least three members who shall be
appointed by the Board of Directors. Committee members may be removed
and replaced by a majority of the members of the Board of Directors in their
discretion. If a Committee Chair is not designated by the Board of
Directors or is not present at a meeting, the members of the Committee may
designate a Chair by majority vote.
The
Committee shall meet as frequently as necessary between meetings of the Board of
Directors and shall have the power and authority to act on behalf of the Board
of Directors and the Corporation with respect to matters as to which it has been
authorized to act by the Board of Directors provided that such actions are not
in conflict with the Certificate of Incorporation or the By-Laws of the
Corporation or applicable laws, regulations or rules and listing standards of
the New York Stock Exchange.
The
Committee shall on a timely basis report all actions of the Committee to the
Board of Directors.
-16-