BY-LAWS
of
DEEP WELL
OIL AND GAS, INC.
(A Nevada
Corporation)
ARTICLE
1
DEFINITIONS
As used
in these By-laws, unless the context otherwise requires, the term:
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1.1
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“Assistant
Secretary” means an Assistant Secretary of the
Corporation.
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1.2
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“Assistant
Treasurer” means an Assistant Treasurer of the
Corporation.
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1.3
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“Board”
means the Board of Directors of the
Corporation.
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1.4
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“By-laws”
means these Amended and Restated By-Laws of the Corporation, as further
amended from time to time.
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1.5
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“Certificate
of Incorporation” means the Certificate of Amended and Restated Articles
of Incorporation of the Corporation, as further amended, supplemented or
restated from time to time.
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1.6
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“Chairman”
means the Chairman of the Board of Directors of the
Corporation.
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1.7
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“Corporation”
means Deep Well Oil and Gas, Inc., a Nevada
corporation.
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1.8
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“Directors”
means directors of the
Corporation.
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1.9
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“Entire
Board” means all then authorized directors of the
Corporation.
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1.10
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute thereto.
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1.11
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“General
Corporation Law” means Chapter 78 of the Nevada Revised Statutes, as
amended from time to time.
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1.12
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“Office
of the Corporation” means the executive office of the
Corporation.
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Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 1 of
19
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1.13
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“President”
means the President of the
Corporation.
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1.14
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“Secretary”
means the Secretary of the
Corporation.
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1.15
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“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute thereto.
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1.16
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“Stockholders”
means stockholders of the
Corporation.
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1.17
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“Treasurer”
means the Treasurer of the
Corporation.
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1.18
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“Vice
President” means a Vice President of the
Corporation.
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ARTICLE
2
STOCKHOLDERS
2.1
Place of
Meetings
. Every meeting of Stockholders may be held at such place,
within or without the State of Nevada, as may be designated by resolution
of
the Board from
time to time. The Board may, in its sole discretion, determine that the
meeting of Stockholders shall not be held at any place, but may instead be held
solely by means of remote communication or in writing if in accordance with
Nevada law.
2.2
General
Meeting
. A meeting of Stockholders shall be held approximately
annually for the election of Directors (the “General Meeting”) at such date and
time as may be designated by resolution of the Board from time to time.
Any other business may be transacted at the General Meeting.
2.3
Special
Meetings
. Special meetings of Stockholders may be called only
by:
(a) the
Chairman,
(b) the
President or
(c) a
majority of the members of the Board and
may not
be called by any other person or persons. Business transacted at any
special meeting of Stockholders shall be limited to the purpose stated in the
notice.
2.4
Fixing Record
Date
. For the purpose of:
(a) determining
the Stockholders entitled
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(i)
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to
notice of or to vote at any meeting of Stockholders or any adjournment
thereof or
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(ii)
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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
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Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 2 of
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(b)
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any
other lawful action,
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the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date was adopted by the Board and which record
date shall not be
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(c)
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in
the case of clause (a)(i) above, more than 60 days nor less than
10 days before the date of such meeting
and
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(d)
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in
the case of clause (a)(ii) or (b) above, more than 60 days
prior to such action.
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If no
such record date is fixed:
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(e)
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the
record date for determining Stockholders entitled to notice of or to vote
at a meeting of Stockholders shall be the close of business on the day
next preceding the day on which notice is given, or, if notice is
waived, the close of business on the day next preceding the day on which
the meeting is held; and
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(f)
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the
record date for determining Stockholders for any purpose other than those
specified in Section 2.4(e) hereof shall be at the close of business on
the day on which the Board adopts the resolution relating
thereto.
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When a
determination of Stockholders of record entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.4, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting.
2.5
Notice of Meetings of
Stockholders
. Whenever under the provisions of applicable law, the
Certificate of Incorporation or these By-laws, Stockholders are required or
permitted to take any action at a meeting, notice shall be given stating the
place, if any, date and hour of the meeting, the means of remote communication,
if any, by which Stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Notice of any meeting
shall be given, not less than 10 nor more than 59 days before the date of the
meeting, to each Stockholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the Canadian or United
States mail, with postage prepaid, directed to the Stockholder at his or her
address as it appears on the records of the Corporation. An affidavit of
the Secretary or an Assistant Secretary or of the transfer agent of the
Corporation that the notice required by this Section 2.5 has been given
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein. Any meeting of Stockholders, General or special, may adjourn from
time to time to reconvene at the same or some other place. When a meeting
is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally
called. If, however, the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each Stockholder of record entitled
to vote at the meeting.
Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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2.6
Waivers of
Notice
. Waiver by a Stockholder in writing of a notice required to
be given to such Stockholder shall constitute a waiver of notice of the meeting,
whether executed and/or delivered before or after such meeting. Attendance
by a Stockholder, in person or by proxy, at a meeting shall constitute a waiver
of notice of such meeting except when the Stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the
purpose of, any General or special meeting of the Stockholders need be specified
in any waiver of notice.
2.7
List of
Stockholders
. The Secretary shall prepare and make, or cause to be
prepared and made, at least 10 days before every meeting of Stockholders, a
complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be
open to the examination of any Stockholder, the Stockholder’s agent, or
attorney, at the Stockholder’s expense, for any purpose germane to the meeting,
for a period of at least 10 days prior to the meeting, during ordinary business
hours at the principal place of business of the Corporation. A
Stockholder may only acquire such copies of such list as and to the extent
required by applicable law. If the meeting is to be held at a place, the
list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any Stockholder who is
present. If the meeting is held solely by means of remote communication,
the list shall also be open for examination as provided by applicable law.
Upon the willful neglect or refusal of the Directors to produce such a list at
any meeting for the election of Directors, they shall be ineligible for election
to any office at such meeting. Except as provided by applicable law, the
Corporation’s stock ledger shall be the only evidence as to who are the
Stockholders entitled to examine the Corporation’s stock ledger, the list of
Stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of Stockholders.
2.8
Quorum of
Stockholders; Adjournment
. At each meeting of Stockholders, the
presence in person or by proxy of the holders of a majority in voting power of
all outstanding shares of stock entitled to vote at the meeting of Stockholders,
shall constitute a quorum for the transaction of any business at such meeting,
except that, where a separate vote by a class or series or classes or series is
required, a quorum shall consist of no less than a majority in voting power of
the shares of such class or series or classes or series. Notwithstanding
the foregoing, if a majority in interest of the Corporation’s stockholders is
not present at a meeting duly called and noticed, and such meeting is adjourned
to another time, place or both by the Stockholders present at such meeting, as
further set forth below, so long as notice (including the time and place) of the
adjourned meeting is provided in accordance with Section 2.5 hereof, the quorum
for such adjourned meeting shall be 25% of the voting power of the Corporation’s
stockholders (including 25% of the voting power of any class or series if the
separate vote by such class or series is required on a matter to be brought
before the meeting). When a quorum is present to organize a meeting
of Stockholders and for purposes of voting on any matter, the quorum for such
meeting or matter is not broken by the subsequent withdrawal of any
Stockholders. In the absence of a quorum, the holders of a majority in
voting power of the shares of stock present in person or represented by proxy at
any meeting of Stockholders, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and place.
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the Corporation,
shall neither be entitled to vote nor be counted for quorum purposes;
provided
,
however
, that the
foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary
capacity.
Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 4 of
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2.9
Voting;
Proxies
. Every Stockholder entitled to vote at any meeting of
Stockholders shall be entitled to one vote for each share of stock held by such
Stockholder which has voting power upon the matter in question. At any
meeting of Stockholders, all matters, except as otherwise provided by Sections
3.3, 3.6 and 7.6 of these By-laws, any provision of the Certificate of
Incorporation or these By-laws subsequently adopted requiring a different
proportion, the rules and regulations of any stock exchange applicable to the
Corporation, applicable law or pursuant to any rules or regulations applicable
to the Corporation or its securities, shall be decided by the affirmative vote
of a majority in voting power of shares of stock present in person or
represented by proxy and entitled to vote thereon. At all meetings of
Stockholders for the election of Directors, a plurality of the votes cast shall
be sufficient to elect. Each Stockholder entitled to vote at a meeting of
Stockholders may authorize another person or persons to act for such Stockholder
by proxy but no such proxy shall be voted or acted upon after six months from
its date, unless the proxy provides for a longer period, not to exceed seven
years. A proxy shall be irrevocable if it states that it is irrevocable
and if, and only so long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A Stockholder may revoke any proxy that is
not irrevocable by attending the meeting and voting in person or by delivering
to the Secretary a revocation of the proxy or by delivering a new proxy bearing
a later date.
2.10
Voting Procedures and
Inspectors of Election at Meetings of Stockholders
. The Board, in
advance of any meeting of Stockholders, may appoint one or more inspectors, who
may be employees of the Corporation, to act at the meeting and make a written
report thereof. The Board may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting, the person presiding at the meeting may
appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors
shall:
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(a)
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ascertain
the number of shares outstanding and the voting power of
each,
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(b)
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determine
the shares represented at the meeting and the validity of proxies and
ballots,
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Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 5 of
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(c)
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count
all votes and ballots,
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(d)
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determine
and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors,
and
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(e)
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certify
their determination of the number of shares represented at the meeting and
their count of all votes and
ballots.
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The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. Unless otherwise provided
by the Board, the date and time of the opening and the closing of the polls for
each matter upon which the Stockholders will vote at a meeting shall be
determined by the person presiding at the meeting and shall be announced at the
meeting. No ballot, proxies or votes, or any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls
unless any court properly applying jurisdiction over the Corporation upon
application by a Stockholder shall determine otherwise. In determining the
validity and counting of proxies and ballots cast at any meeting of
Stockholders, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for office at an election may
serve as an inspector at such election.
2.11
Conduct of Meetings;
Organization; Director Nominations and Other Stockholder
Proposals
.
The Board
may adopt by resolution such rules and regulations for the conduct of the
meeting of Stockholders as it shall deem appropriate.
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(a)
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At
each meeting of Stockholders, the President, or in the absence of the
President, the Chairman, or if there is no Chairman or if there be one and
the Chairman is absent, a Vice President, and in case more than one Vice
President shall be present, that Vice President designated by the Board
(or in the absence of any such designation, the most senior Vice
President, based on age, present), shall preside over the meeting.
Except to the extent inconsistent with such rules and regulations as are
adopted by the Board, the person presiding over any meeting of
Stockholders shall have the right and authority to convene and to adjourn
the meeting, to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of such person, are appropriate for the
proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the presiding
officer of the meeting, may include, without limitation, the
following:
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(i)
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the
establishment of an agenda or order of business for the
meeting;
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Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 6 of
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(ii)
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rules
and procedures for maintaining order at the meeting and the safety of
those present;
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(iii)
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limitations
on attendance at or participation in the meeting applicable to
Stockholders of record of the Corporation, their duly authorized and
constituted proxies or such other persons as the person presiding over the
meeting shall determine;
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(iv)
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restrictions
on entry to the meeting after the time fixed for the commencement thereof;
and
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(v)
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limitations
on the time allotted to questions or comments by
participants.
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The
presiding officer at any meeting of Stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall, if the facts warrant, determine and declare to the meeting that a matter
or business was not properly brought before the meeting and if such presiding
officer should so determine, such person shall so declare to the meeting and any
such matter or business not properly brought before the meeting shall not be
transacted or considered. Unless and to the extent determined by the Board
or the person presiding over the meeting, meetings of Stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure. The Secretary, or in his or her absence, one of the Assistant
Secretaries, shall act as secretary of the meeting. In case none of the
officers above designated to act as the person presiding over the meeting or as
secretary of the meeting, respectively, shall be present, a person presiding
over the meeting or a secretary of the meeting, as the case may be, shall be
designated by the Board, and in case the Board has not so acted, in the case of
the designation of a person to act as secretary of the meeting, the person to
act as secretary of the meeting shall be designated by the person presiding over
the meeting.
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(b)
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Only
persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of persons
for election to the Board may be made at a General Meeting or special
meeting of Stockholders only:
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(i)
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by
or at the direction of the Board,
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Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 7 of
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(ii)
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by
any nominating committee designated by the Board
or
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(iii)
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by
any Stockholder of the Corporation who was a Stockholder of record of the
Corporation at the time the notice provided for in this Section 2.11 is
delivered to the Secretary. Such nominating Stockholder must be entitled
to vote for the election of Directors at the meeting and must comply with
the applicable provisions of Section 2.11(d)
hereof.
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Persons
nominated in accordance with (iii) above are referred to herein as
“Stockholder nominees”.
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(c)
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At
any General Meeting of Stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be
properly brought before a General Meeting of
Stockholders,
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(i)
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business
must be specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the
Board,
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(ii)
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otherwise
properly brought before the meeting by or at the direction of the Board
or
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(iii)
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otherwise
properly brought before the meeting by a Stockholder who was a Stockholder
of record of the Corporation at the time the notice provided for in this
Section 2.11 is delivered to the Secretary. Such proposing Stockholder
must be entitled to vote at the meeting and must comply with the
applicable provisions of Section 2.11(d)
hereof.
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Business
brought before the meeting in accordance with (iii) above is referred to as
“Stockholder business”.
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(d)
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At
any General or special meeting of
Stockholders;
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(i)
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all
nominations of Stockholder nominees must be made by timely written notice
given by or on behalf of a Stockholder of record of the Corporation (the
“Notice of Nomination”) and
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(ii)
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all
proposals of Stockholder business must be made by timely written notice
given by or on behalf of a Stockholder of record of the Corporation (the
“Notice of Business”).
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To be
timely, the Notice of Nomination or the Notice of Business, as the case may be,
must be delivered personally to, or mailed to, and received at the Office of the
Corporation, addressed to the attention of the Secretary,
Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 8 of
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(i)
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in
the case of the nomination of a person for election to the Board, or
business to be conducted, at a General Meeting of Stockholders, not less
than ninety (90) days nor more than one hundred and twenty (120) days
prior to the first anniversary of the date of the prior year’s General
Meeting of Stockholders, or
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(ii)
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in
the case of the nomination of a person for election to the Board at a
special meeting of Stockholders, not more than one hundred and twenty
(120) days prior to and not less than the later
of:
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a.
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ninety
(90) days prior to such special meeting
or
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b.
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the
tenth day following the day on which the notice of such special meeting
was made by mail or Public Disclosure; provided, however, that in the
event that either
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i.
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the
General Meeting of Stockholders is advanced by more than thirty (30) days,
or delayed by more than seventy (70) days, from the first anniversary of
the prior year’s General Meeting of
Stockholders,
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ii.
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no
General Meeting was held during the prior year
or,
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(iii)
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in
the case of the Corporation’s first General Meeting of Stockholders as a
corporation with a class of equity security registered under the
Securities Act, notice by the Stockholder to be timely must be
received;
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a.
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no
earlier than one hundred and twenty (120) days prior to such General
Meeting and
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b.
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no
later than the later of ninety (90) days prior to such General Meeting or
ten (10) days following the day the notice of such General Meeting was
made by mail or Public Disclosure, regardless of any postponement,
deferral or adjournment of the meeting to a later
date.
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In no
event shall the Public Disclosure of an adjournment or postponement of an
General or special meeting commence a new time period (or extend any time
period) for the giving of the Notice of Nomination or Notice of Business, as
applicable.
Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Page 9 of
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Notwithstanding
anything in the immediately preceding paragraph to the contrary, in the event
that the number of directors to be elected to the Board at a General Meeting is
increased and there is no public announcement by the Corporation naming the
nominees for the additional directorships at least one hundred (100) days prior
to the first anniversary of the preceding year’s General Meeting, a Notice of
Nomination shall also be considered timely, but only with respect to nominees
for the additional directorships, if it shall be delivered at the Office of the
Corporation, addressed to the attention of the Secretary, not later than the
close of business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
The Notice of Nomination shall set
forth;
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(i)
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the
name and record address of the Stockholder and/or beneficial owner
proposing to make nominations, as they appear on the Corporation’s
books,
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(ii)
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the
class and number of shares of stock held of record and beneficially by
such Stockholder and/or such beneficial
owner,
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(iii)
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a
representation that the Stockholder is a holder of record of stock of the
Corporation entitled to vote at the meeting and intends to appear in
person or by proxy at the meeting to propose such
nomination,
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(iv)
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all
information regarding each Stockholder nominee that would be required to
be set forth in a definitive proxy statement filed with the Securities and
Exchange Commission pursuant to Section 14 of the Exchange Act, and the
written consent of each such Stockholder nominee to being named in a proxy
statement as a nominee and to serve if elected
and
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(v)
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all
other information that would be required to be filed with the Securities
and Exchange Commission if the person proposing such nominations were a
participant in a solicitation subject to Section 14 of the Exchange
Act.
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The
Corporation may require any Stockholder nominee to furnish such other
information as it may reasonably require to determine the eligibility of such
Stockholder nominee to serve as a Director of the Corporation. The person
presiding over the meeting shall, if the facts warrant, determine and declare to
the meeting that any proposed nomination of a Stockholder nominee was not made
in accordance with the foregoing procedures and, if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
The Notice of Business shall set
forth:
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(i)
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the
name and record address of the Stockholder and/or beneficial owner
proposing such Stockholder business, as they appear on the Corporation’s
books,
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Gas, Inc. Bylaws approved August 28, 2009
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Page 10 of
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(ii)
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the
class and number of shares of stock held of record and beneficially by
such Stockholder and/or such beneficial
owner,
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(iii)
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a
representation that the Stockholder is a holder of record of stock of the
Corporation entitled to vote at the meeting and intends to appear in
person or by proxy at the meeting to propose such
business,
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(iv)
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a
brief description of the Stockholder business desired to be brought before
the General Meeting, the text of the proposal (including the text of any
resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the By-laws, the language of the
proposed amendment, and the reasons for conducting such Stockholder
business at the General
Meeting,
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(v)
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any
material interest of the Stockholder and/or beneficial owner in such
Stockholder business and
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(vi)
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at
any time after a Registration Statement relating to any series of the
Corporation’s securities has become effective under the Securities Act,
all other information that would be required to be filed with the
Securities and Exchange Commission if the person proposing such
Stockholder business were a participant in a solicitation subject to
Section 14 of the Exchange
Act.
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Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at the
General Meeting of Stockholders except in accordance with the procedures set
forth in this Section 2.11(d), provided, however, that nothing in this Section
2.11(d) shall be deemed to preclude discussion by any Stockholder of any
business properly brought before the General Meeting in accordance with said
procedure. Nevertheless, it is understood that Stockholder business may be
excluded if the exclusion of such Stockholder business is permitted by the
applicable law. 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. The person presiding over the meeting
shall, if the facts warrant, determine and declare to the meeting, that business
was not properly brought before the meeting in accordance with the foregoing
procedures and, if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
Notwithstanding
the foregoing provisions of this Section 2.11, if the Stockholder (or a
qualified representative of the Stockholder) does not appear at the General or
special meeting of Stockholders to present the Stockholder nomination or the
Stockholder business, as applicable, such nomination shall be disregarded and
such business shall not be transacted, notwithstanding that proxies in respect
of such vote may have been received by the Corporation.
For
purposes of this Section 2.11, “Public Disclosure” shall be deemed to be first
made when disclosure of such date of the General or special meeting of
Stockholders, as the case may be, is first made by the Corporation in an
announcement, which may include a press release, to the press or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Deep Well Oil &
Gas, Inc. Bylaws approved August 28, 2009
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Notwithstanding
the foregoing, after the date that a Registration Statement relating to a series
of the Corporation’s securities has become effective under the Securities Act, 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 Section 2.11.
2.12
Order of
Business
. The order of business at all meetings of Stockholders
shall be as determined by the person presiding over the meeting.
ARTICLE
3
DIRECTORS
3.1
General
Powers
. The business and affairs of the Corporation shall be
managed by or under the direction of the Board. The Board may adopt such
rules and regulations, not inconsistent with the Certificate of Incorporation or
these By-laws or applicable law, as it may deem proper for the conduct of its
meetings and the management of the Corporation.
3.2
Number; Qualification;
Term of Office
. The total number of Directors constituting the
Entire Board shall be not less than 3 nor more than 15, with the then-authorized
number of Directors being fixed from time to time by the Board. Directors
need not be Stockholders. Each Director shall hold office until a
successor is duly elected and qualified or until the Director’s earlier death,
resignation, disqualification or removal. The members of the Board shall
serve for one year and until their successors have been elected.
3.3
Election
.
Directors shall be elected by a plurality of the votes cast at a meeting of
Stockholders by the holders of shares present in person or represented by proxy
at the meeting and entitled to vote in the election.
3.4
Newly Created
Directorships and Vacancies
. Any newly created Directorships
resulting from any increase in the authorized number of Directors or any
vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled by a majority
vote of the remaining Directors then in office although less than a quorum, or
by a sole remaining Director, and Directors so chosen shall hold office until
the expiration of the term of office of the Director whom he or she has replaced
or until his or her successor is duly elected and qualified. No decrease
in the number of Directors constituting the Board shall shorten the term of any
incumbent Director. When any Director shall give notice of resignation
effective at a future date, the Board may fill such vacancy to take effect when
such resignation shall become effective in accordance with the General
Corporation Law.
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3.5
Resignation
.
Any Director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation. Such resignation shall take
effect at the time therein specified, and, unless otherwise specified in such
resignation, the acceptance of such resignation shall not be necessary to make
it effective.
3.6
Removal
.
Any Director, or the Entire Board, may be removed from office at any time, but
only for cause and only by the affirmative vote of at least 66-2/3% of the total
voting power of the outstanding shares of stock of the Corporation entitled to
vote generally in the election of Directors, voting together as a single
class.
3.7
Compensation
.
Each Director, in consideration of his or her service as such, shall be entitled
to receive from the Corporation such amount per annum
or such
fees for attendance at Directors’ meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in connection with the performance
of his or her duties. Each Director who shall serve as a member of any
committee of Directors, including as chairperson of such committee of Directors,
in consideration of serving as such shall be entitled to such additional amount
per annum or such fees for attendance at committee meetings, or both, as the
Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in the
performance of his or her duties. Nothing contained in this Section 3.7
shall preclude any Director from serving the Corporation or its subsidiaries in
any other capacity and receiving proper compensation therefore.
3.8
Regular
Meetings
. Regular meetings of the Board may be held without notice
at such times and at such places within or without the State of Nevada as shall
from time to time be determined by the Board.
3.9
Special
Meetings
. Special meetings of the Board may be held at any time or
place, within or without the State of Nevada, whenever called by the Chairman,
the President or by any two or more Directors then serving as Directors on at
least seventy-two hours notice to each Director given by one of the means
specified in Section 3.12 hereof other than by mail, or on at least seven days’
notice if given by physical mail. Special meetings shall be called by the
Chairman, President or Secretary in like manner and on like notice on the
written request of any two or more of the Directors. Notwithstanding
the foregoing, if the Chairman or the President and at least one Director, have
determined that an emergency exists that requires a meeting to be held on an
expedited basis, then notice shall be given by the means specified in Section
3.12 hereof, other than physical mail, and the notice period shall be
twenty-four hours.
3.10
Telephone
Meetings
. Directors or members of any committee designated by the
Board may participate in a meeting of the Board or of such committee by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.10 shall constitute presence in person at
such meeting.
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3.11
Adjourned
Meetings
. A majority of the Directors present at any meeting of the
Board, including an adjourned meeting, whether or not a quorum is present, may
adjourn such meeting to another time and place. At least 72 hours’ notice
of any adjourned meeting of the Board shall be given to each Director whether or
not present at the time of the adjournment, if such notice shall be given by one
of the means specified in Section 3.12 hereof other than by mail, or at least
seven days’ notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.12
Notice
Procedure
. Subject to Sections 3.9 and 3.10 hereof, whenever notice
is required to be given by the Corporation to any Director, such notice shall be
deemed given effectively if given in person, by telephone, by mail addressed to
such Director at such Director’s address, electronic or physical, as it appears
on the records of the Corporation, with postage thereon prepaid, or by telegram,
telex, telecopy or other means of electronic transmission.
3.13
Waiver of
Notice
. Waiver by a Director in writing of notice of a Director’s
meeting shall constitute a waiver of notice of the meeting, whether executed
and/or delivered before or after such meeting. Attendance by a Director at
a meeting shall constitute a waiver of notice of such meeting except when the
Director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting has not been lawfully called or convened, if such Director then
promptly withdraws from the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Directors or a
committee of Directors need be specified in any written waiver of
notice.
3.14
Organization
.
At each meeting of the Board, the Chairman, or in the absence of the Chairman,
the President, or in the absence of the President, a chairman chosen by a
majority of the Directors present, shall preside. The Secretary shall act
as secretary at each meeting of the Board. In case the Secretary shall be
absent from any meeting of the Board, an Assistant Secretary shall perform the
duties of secretary at such meeting; and in the absence from any such meeting of
the Secretary and all Assistant Secretaries, the person presiding at the meeting
may appoint any person to act as secretary of the meeting.
3.15
Quorum of
Directors
. The presence in person of a majority of the entire Board
shall be necessary and sufficient to constitute a quorum for the transaction of
business at any meeting of the Board.
3.16
Action by Majority
Vote
. Except as otherwise expressly required by applicable law, the
act of a majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board.
3.17
Action Without
Meeting
. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if the majority of Directors or members 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 and re-affirmed,
if necessary, with the minutes of proceedings of the Board or committee.
Such filing shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in electronic
form.
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ARTICLE
4
COMMITTEES OF THE
BOARD
The Board
may, by resolution, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may adopt
charters for one or more of such committees. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of such committee. If a
member of a committee shall be absent from any meeting, or disqualified from
voting thereat, the remaining member or members present at the meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may, by a unanimous vote, appoint another member of the Board to act at
the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent permitted by applicable law and to the extent
provided in the resolution of the Board designating such committee or the
charter for such committee, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation. The Board may remove any Director from any committee at any
time, with or without cause. Unless otherwise specified in the resolution
of the Board designating a committee or the charter for such committee, at all
meetings of such committee, a majority of the then authorized members of the
committee shall constitute a quorum for the transaction of business, and
the vote of a majority of the members of the committee present at any meeting at
which there is a quorum shall be the act of the committee. Each committee
shall keep regular minutes of its meetings. If the Board provides, each
committee designated by the Board may make, alter and repeal rules for the
conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board conducts its business
pursuant to Article 3 of these By-laws.
ARTICLE
5
OFFICERS
5.1
Positions
. The
officers of the Corporation shall be a President, a Secretary, a Treasurer and
such other officers as the Board may elect, including a Chairman, one or more
Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers,
who shall exercise such powers and perform such duties as shall be determined
from time to time by resolution of the Board. The Board may elect one or
more Vice Presidents as Executive Vice Presidents and may use descriptive words
or phrases to designate the standing, seniority or areas of special competence
of the Vice Presidents elected or appointed by it. Any number of offices
may be held by the same person.
5.2
Election
.
The officers of the Corporation shall be elected by the Board at its General
meeting or at such other time or times as the Board shall
determine.
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5.3
Term of
Office
. Each officer of the Corporation shall hold office for the
term for which he or she is elected and until such officer’s successor is
elected and qualifies or until such officer’s earlier death, resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the date of receipt of
such notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer may be removed at
any time, with or without cause, by the Board. Any vacancy occurring in
any office of the Corporation may be filled by the Board. The removal of
an officer, with or without cause, shall be without prejudice to the officer’s
contract rights, if any. The election or appointment of an officer shall
not of itself create contract rights.
5.4
Fidelity
Bonds
. The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5.5
Chairman
.
The Chairman, if one shall have been appointed, shall preside at all meetings of
the Board and shall exercise such powers and perform such other duties as shall
be determined from time to time by resolution of the Board.
5.6
President
. The
President shall have general supervision over the business of the Corporation
and shall be its chief executive officer, subject, however, to the control of
the Board and of any duly authorized committee of the Board. The President
shall preside at all meetings of the Stockholders and at all meetings of the
Board at which the Chairman (if there be one) is not present. The
President may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts and other instruments, except in cases in which the signing and
execution thereof shall be expressly delegated by resolution of the Board or by
these By-laws to some other officer or agent of the Corporation or shall be
required by applicable law otherwise to be signed or executed and, in general,
the President shall perform all duties incident to the office of president of a
corporation and such other duties as may from time to time be assigned to the
President by resolution of the Board.
5.7
Vice
Presidents
. At the request of the President, or, in the President’s
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board, or, in the absence of any such designation,
in order of seniority based on title) perform all of the duties of the President
and, in so performing, shall have all the powers of, and be subject to all
restrictions upon, the President. Any Vice President may sign and execute
in the name of the Corporation deeds, mortgages, bonds, contracts and other
instruments, except in cases in which the signing and execution thereof shall be
expressly delegated by resolution of the Board or by these By-laws to some other
officer or agent of the Corporation, or shall be required by applicable law
otherwise to be signed or executed, and each Vice President shall perform such
other duties as from time to time may be assigned to such Vice President by
resolution of the Board or by the President.
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5.8
Secretary
. The
Secretary shall attend all meetings of the Board and of the Stockholders and
shall record all the proceedings of the meetings of the Board and of the
Stockholders in a book to be kept for that purpose, and shall perform like
duties for committees of the Board, when required. The Secretary shall
give, or cause to be given, notice of all special meetings of the Board and of
the Stockholders and shall perform such other duties as may be prescribed by the
Board or by the President, under whose supervision the Secretary shall be.
The Secretary or an Assistant Secretary may also attest all instruments signed
by the President or any Vice President. The Secretary shall have charge of
all the books, records and papers of the Corporation relating to its
organization and management, shall see that the reports, statements and other
documents required by applicable law are properly kept and filed and, in
general, shall perform all duties incident to the office of Secretary of a
corporation and such other duties as may from time to time be assigned to the
Secretary by resolution of the Board or by the President.
5.9
Treasurer
. The
Treasurer shall have charge and custody of, and be responsible for, all funds,
securities and notes of the Corporation; receive and give receipts for moneys
due and payable to the Corporation from any sources whatsoever; deposit all such
moneys and valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board; against proper vouchers,
cause such funds to be disbursed by checks or drafts on the authorized
depositaries of the Corporation signed in such manner as shall be determined by
the Board and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or
paid for the account of the Corporation; have the right to require from time to
time reports or statements giving such information as the Treasurer may desire
with respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board shall require the Treasurer so to do, an
account of the financial condition of the Corporation and of all financial
transactions of the Corporation; disburse the funds of the Corporation as
ordered by the Board; and, in general, perform all duties incident to the office
of Treasurer of a corporation and such other duties as may from time to time be
assigned to the Treasurer by resolution of the Board or by the
President.
5.10
Assistant Secretaries
and Assistant Treasurers
. Assistant Secretaries and Assistant
Treasurers shall perform such duties as shall be assigned to them by the
Secretary or by the Treasurer, respectively, or by resolution of the Board or by
the President.
ARTICLE
6
INDEMNIFICATION
6.1
Right to
Indemnification
. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (a “Covered Person”) who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
“Proceeding”), by reason of the fact that he or she, or a person for whom he or
she is legal representative, is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity (an “Other Entity”), including service with respect to employee benefit
plans, against all liability and loss suffered and expenses (including
attorneys’ fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except as otherwise provided in Section
6.3, the Corporation shall be required to indemnify a Covered Person in
connection with a Proceeding (or part thereof) commenced by such Covered Person
only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized by the Board.
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6.2
Prepayment of
Expenses
. The Corporation shall pay the expenses (including
attorneys’ fees) incurred by a Covered Person in defending any Proceeding in
advance of its final disposition,
provided
,
however
, that, to the
extent required by applicable law, such payment of expenses in advance of the
final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article 6 or otherwise.
6.3
Claims
.
If a claim for indemnification or advancement of expenses under this Article 6
is not paid in full within 30 days after a written claim therefor by the Covered
Person has been received by the Corporation, the Covered Person may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the Covered
Person is not entitled to the requested indemnification or advancement of
expenses under applicable law.
6.4
Nonexclusivity of
Rights
. The rights conferred on any Covered Person by this Article
6 shall not be exclusive of any other rights that such Covered Person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
6.5
Other
Sources
. The Corporation’s obligation, if any, to indemnify or to
advance expenses to any Covered Person who was or is serving at its request as a
director, officer, employee or agent of an Other Entity shall be reduced by any
amount such Covered Person may collect as indemnification or advancement of
expenses from such Other Entity.
6.6
Amendment or
Repeal
. Any repeal or modification of the foregoing provisions of
this Article 6 shall not adversely affect any right or protection hereunder of
any Covered Person in respect of any act or omission occurring prior to the time
of such repeal or modification.
6.7
Other Indemnification
and Prepayment of Expenses
. This Article 6 shall not limit the
right of the Corporation, to the extent and in the manner permitted by law, to
indemnify and to advance expenses to persons other than Covered Persons when and
as authorized by appropriate corporate action.
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ARTICLE
7
GENERAL
PROVISIONS
7.1
Certificates
Representing Shares
. The shares of stock of the
Corporation shall be represented by certificates, or shall be uncertificated
shares that may be evidenced by a book-entry system maintained by the registrar
of such stock, or a combination of both. Every holder of stock shall
be entitled to have a certificate, signed by or in the name of the Corporation
by the Chairman, if any, or the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by such holder of stock in the
Corporation. Any or all of the signatures upon a certificate may be
facsimiles. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon any certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or registrar
at the date of issue.
7.2
Transfer and Registry
Agents
. The Corporation may from time to time maintain one or more
transfer offices or agents and registry offices or agents at such place or
places as may be determined from time to time by the Board.
7.3
Lost, Stolen or
Destroyed Certificates
. The Corporation may issue a new certificate
of stock in the place of any certificate theretofore issued by it, alleged to
have been lost, stolen or destroyed, and the Corporation may, in the
Corporation’s sole and unfettered discretion, require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
7.4
Form of
Records
. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or by means of, or be in the form of, any information
storage device or method, provided that the records so kept can be converted
into clearly legible paper form within a reasonable time. The Corporation
shall so convert any records so kept upon the request of any person entitled to
inspect such records pursuant to applicable law.
7.5
Fiscal
Year
. The fiscal year of the Corporation shall be determined
by resolution of the Board.
7.6
Amendments
. These
By-laws may be altered, amended or repealed and new By-laws may be adopted
either;
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(a)
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by
a majority of the Board, or
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(b)
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by
the affirmative vote of at least a majority of the voting power of
the shares of then outstanding voting stock of the Corporation, voting
together as a single class.
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