AMENDED
AND RESTATED BYLAWS
OF
EARTHSTONE
ENERGY, INC.
Adopted
February 26, 2010
ARTICLE
1
OFFICES
The
registered office of Earthstone Energy, Inc. (the “
Company
”) in the
State of Delaware will be as provided for in the Amended and Restated
Certificate of Incorporation of the Company (the “
Certificate of
Incorporation
”). The Company will have offices at such other
places as the Board of Directors may from time to time determine.
ARTICLE
2
STOCKHOLDERS
2.1
Annual
Meetings
. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly come
before the meeting will be held on the date and at the time and place, if any,
fixed, from time to time, by resolution of the Board of Directors. In
lieu of holding an annual meeting of stockholders at a designated place, the
Board of Directors may, in its sole discretion, determine that an annual meeting
of stockholders may be held solely by means of remote
communication.
2.2
Special
Meetings
. Except as otherwise required by law, special
meetings of stockholders may be called only by those persons specified in the
Certificate of Incorporation or as otherwise required under the provisions of
the Delaware General Corporation Law (the “
DGCL
”).
2.3
Notice of
Meeting
. Written notice stating the place, if any, date and
hour of the meeting, and means of remote communication, if any, and, in case of
a special meeting, the purpose or purposes for which the meeting is called, will
be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting, except as otherwise required by law or the Certificate of
Incorporation, either personally or by mail, prepaid facsimile transmission,
electronic mail, or overnight courier, to each stockholder of record entitled to
vote at such meeting. If mailed, such notice will be deemed to be given when
deposited in the United States mail, postage prepaid, addressed to the
stockholder at the stockholder’s address as it appears on the stock records of
the Company. Notice given by electronic transmission pursuant to this Section
shall be deemed given: (1) if by facsimile transmission, when directed to a
facsimile telecommunication number at which the stockholder has consented to
receive notice; (2) if by electronic mail, when directed to the electronic mail
address at which the stockholder has consented to receive notice; (3) if by
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting, and
(B) the giving of such separate notice; and (4) if by any other form of
electronic transmission, when directed to the stockholder. An affidavit of the
secretary or assistant secretary or of the transfer agent or other agent of the
Company that the notice has been given by personal delivery, by mail, or by a
form of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
2.4
Waiver
. Attendance
of a stockholder of the Company, either in person or by proxy, at any meeting,
whether annual or special, will constitute a waiver of notice of such meeting,
except where a stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. A written or electronic
transmission of waiver of notice of any such meeting signed by a stockholder or
stockholders entitled to such notice, whether before, at or after the time for
notice or the time of the meeting, will be equivalent to notice. If such waiver
is given by electronic transmission, the electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder. Neither the business
to be transacted at, nor the purposes of, any meeting need be specified in any
written waiver of notice.
2.5
Notice of Business to be
Transacted at Meetings of Stockholders
. No business may be
transacted at any meeting of stockholders, including the nomination or election
of persons to the Board of Directors, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) with respect to an annual meeting or a special meeting called by any of
the persons specified in Section 10.1 of the Certificate of Incorporation, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the meeting by any stockholder of the Company (1) who is
a stockholder of record on the date of the giving of the notice provided for in
this Section 2.5 and on the record date for the determination of stockholders
entitled to vote at such meeting and (2) who complies with the notice procedures
set forth in this Section 2.5. In addition to any other applicable requirements,
for business to be properly brought before a meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
secretary of the Company. In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, 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 record date shall
not be more than sixty (60) nor fewer than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. The notice procedures set forth in this Section 2.5 shall not be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Company’s proxy statement pursuant to, and in compliance with the requirements
of, Rule 14a-8 of the Exchange Act of 1934.
(a) To
be timely, a stockholder’s notice to the secretary must be delivered to or
mailed and received at the principal executive offices of the Company not less
than ninety (90) days nor more than one hundred twenty (120) days prior to the
date of the meeting; provided, however, that in the event that public disclosure
of the date of the meeting is first made less than one hundred (100) days prior
to the date of the meeting, notice by the stockholder in order to be timely must
be so received not later than the close of business on the tenth (10
th
) day
following the day on which such public disclosure of the date of the meeting was
made.
(b) To
be in proper written form, a stockholder’s notice to the secretary regarding any
business other than nominations of persons for election to the Board of
Directors must set forth as to each matter such stockholder proposes to bring
before the meeting, (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Company that are
owned beneficially or of record by such stockholder, (iv) all other ownership
interests of such stockholder, including derivatives, hedged positions,
synthetic and temporary ownership techniques, swaps, securities, loans, timed
purchases and other economic and voting interests, (v) a description of all
other arrangements or understandings between such stockholder and any other
person or persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such stockholder
in such business and (vi) a representation that such stockholder intends to
appear in person or by proxy at the meeting to bring such business before the
meeting.
(c) To
be in proper written form, a stockholder’s notice to the secretary regarding
nominations of persons for election to the Board of Directors must set forth (a)
as to each proposed nominee, (i) the name, age, business address and residence
address of the nominee, (ii) the principal occupation or employment of the
nominee, (iii) the class or series and number of shares of capital stock of the
Company that are owned beneficially or of record by the nominee and (iv) any
other information relating to the nominee 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 pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and
the rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice, (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Company that are
owned beneficially or of record by such stockholder, (iii) all other ownership
interests of such stockholder, including derivatives, hedged positions,
synthetic and temporary ownership techniques, swaps, securities, loans, timed
purchases and other economic and voting interests, (iv) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (v) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in such stockholder’s notice and (vi) any other
information relating to such stockholder 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 pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected. Each proposed nominee will
be required to complete a questionnaire, in a form to be provided by the
Company, to be submitted with the stockholder’s notice. The Company may also
require any proposed nominee to furnish such other information as may reasonably
be required by the Company to determine the eligibility of such proposed nominee
to serve as an independent director of the Company or that could be material to
a reasonable stockholder’s understanding of the independence, or lack thereof,
of such nominee.
(d) No
business shall be conducted at any meeting of stockholders, and no person
nominated by a stockholder shall be eligible for election as a director, unless
proper notice was given with respect to the proposed action in compliance with
the procedures set forth in this Section 2.5. Determinations of the chairman of
the meeting as to whether those procedures were complied with in a particular
case shall be final and binding.
2.6
Quorum and
Adjournment
. Except as otherwise required by law, the
Certificate of Incorporation or these Bylaws, the holders of not less than a
majority of the shares entitled to vote at any meeting of the stockholders,
present in person or by proxy, will constitute a quorum. If a quorum
is not present at any meeting, the chairman of the meeting, or the stockholders,
although less than a quorum, may adjourn the meeting to another time and
place. When a meeting is adjourned to another time and place, if any,
unless otherwise provided by these Bylaws, notice need not be given of the
adjourned meeting if the date, time and place, if any, thereof and the means of
remote communication, if any, by which the stockholders and proxyholders may be
deemed to be present in person and vote at such adjourned meeting, are announced
at the meeting at which the adjournment is taken. At the adjourned
meeting, the stockholders may transact any business that might have been
transacted at the original meeting. A determination of stockholders
of record entitled to notice of or vote at a meeting of stockholders shall apply
to any adjournment of such meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting. If the
adjournment is for more than thirty (30) days or, if after an adjournment, a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the
meeting.
2.7
Procedure
. The
order of business and all other matters of procedure at every meeting of the
stockholders may be determined by the chairman of the meeting. The
chairman of any meeting of the stockholders shall be the chairman of the Board
of Directors or any other director or officer of the Company so appointed by the
Board of Directors. The secretary of the Company shall act as
secretary of all meetings of the stockholders, but, in the absence of the
secretary, the presiding officer of the meeting may appoint any person to act as
secretary of the meeting.
2.8
Vote
Required
. Except as otherwise provided by law or by the
Certificate of Incorporation:
(a)
Directors
shall be elected by a plurality in voting power of the shares in person or
represented by proxy at a meeting of the stockholders and entitled to vote in
the election of directors; and
(b)
Whenever
any corporate action other than the election of directors is to be taken, it
shall be authorized by a majority in voting power of the shares present in
person or represented by proxy at a meeting of stockholders and entitled to vote
on the subject matter.
2.9
Manner of Voting;
Proxies
.
(a)
At each
meeting of stockholders, each stockholder having the right to vote shall be
entitled to vote in person or by proxy. Each stockholder shall be
entitled to vote each share of stock having voting power and registered in such
stockholder’s name on the books of the Company on the record date fixed for
determination of stockholders entitled to vote at such meeting.
(b)
Each
person 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 three years from its date, unless the proxy
provides for a longer period. 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. Proxies
need not be filed with the secretary of the Company until the meeting is called
to order but shall be filed before being voted. Without limiting the
manner in which a stockholder may authorize another person or persons to act for
such stockholder as proxy, the following shall constitute valid means by which a
stockholder may grant such authority:
(1)
A
stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the
stockholder or the stockholder’s authorized officer, director, employee, or
agent signing such writing or causing such person’s signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature; and
(2)
A
stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the electronic transmission to the
person or persons who will be the holder of the proxy or to an agent of the
proxyholder(s) duly authorized by such proxyholder(s) to receive such
transmission;
provided
,
however
, that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorized by the stockholder. If it is determined that any such
electronic transmission is valid, the inspectors or, if there are no inspectors,
such other persons making that determination, shall specify the information upon
which they relied.
Any copy,
facsimile telecommunication, or other reliable reproduction of a writing or
electronic transmission authorizing a person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the original writing or
electronic transmission for any and all purposes for which the original writing
or electronic transmission could be used;
provided
,
however
, that such
copy, facsimile telecommunication, or other reproduction shall be a complete
reproduction of the entire original writing or electronic
transmission.
2.10
Remote
Communication
. For the purposes of these Bylaws, if authorized
by the Board of Directors in its sole discretion, and subject to such guidelines
and procedures as the Board of Directors may adopt, stockholders and
proxyholders may, by means of remote communication:
(c)
participate
in a meeting of stockholders; and
(d)
be deemed
present in person and vote at a meeting of stockholders whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (i) the Company shall implement reasonable measures to verify that
each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder, (ii) the Company shall
implement reasonable measures to provide such stockholders and proxyholders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and
(iii) if any stockholder or proxyholder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the Company.
2.11
Conduct of the
Meeting
. At each meeting of stockholders, the presiding
officer of the meeting shall fix and announce the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at the meeting and shall determine the order of business and all other
matters of procedure. The Board of Directors may adopt by resolution
such rules, regulations, and procedures for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with any such rules and regulations adopted by the Board of
Directors, the presiding officer of the meeting shall have the right and
authority to convene and to adjourn the meeting and to establish rules,
regulations, and procedures, which need not be in writing, for the conduct of
the meeting and to maintain order and safety. Without limiting the
foregoing, he or she may:
(a)
restrict
attendance at any time to bona fide stockholders of record and their proxies and
other persons in attendance at the invitation of the presiding officer or Board
of Directors;
(b)
place
restrictions on entry to the meeting after the time fixed for the commencement
thereof;
(c)
restrict
dissemination of solicitation materials and use of audio or visual recording
devices at the meeting;
(d)
adjourn
the meeting without a vote of the stockholders, whether or not there is a quorum
present; and
(e)
make
rules governing speeches and debate, including time limits and access to
microphones.
The
presiding officer of the meeting shall act in his or her absolute discretion and
his or her rulings shall not be subject to appeal.
2.12
Inspectors of
Election
. The Company may, and shall if required by law, in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Company, to act at the meeting or any
adjournment thereof and to make a written report thereof. The Company
may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. In the event that no inspector so
appointed or designated is able to act at a meeting of stockholders, the person
presiding at the meeting shall 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 to execute faithfully the duties
of inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated shall
(i) ascertain the number of shares of capital stock of the Company outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Company represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the Company represented at the meeting and
such inspectors’ count of all votes and ballots. Such certification
and report shall specify such other information as may be required by
law. In determining the validity and counting of proxies and ballots
cast at any meeting of stockholders of the Company, the inspectors may consider
such information as is permitted by applicable law. No person
who is a candidate for an office at an election may serve as an inspector at
such election.
ARTICLE
3
DIRECTORS
3.1
Number
. Subject
to the provisions of the Certificate of Incorporation, the number of directors
will be fixed from time to time exclusively by resolutions adopted by the Board
of Directors.
3.2
Powers
. The
Board of Directors shall exercise all of the powers of the Company, except such
as are, by applicable law, the Certificate of Incorporation, or these Bylaws,
conferred upon or reserved to the stockholders of any class or classes or series
thereof.
3.3
Resignations
. Any
director may resign at any time by giving written notice in writing or by
electronic transmission to the Board of Directors or the secretary;
provided
,
however
, that if such
notice is given by electronic transmission, such electronic transmission must
either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the
director. Such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein. Acceptance of
such resignation shall not be necessary to make it effective.
3.4
Regular
Meetings
. The Board of Directors shall meet immediately after,
and at the same place as, the annual meeting of the stockholders, provided a
quorum is present, and no notice of such meeting will be necessary in order to
legally constitute the meeting. Regular meetings of the Board of
Directors will be held at such times and places as the Board of Directors may
from time to time determine.
3.5
Special
Meetings
. Special meetings of the Board of Directors may be
called at any time, at any place and for any purpose by the chairman of the
Board of Directors, the chief executive officer, or by a majority of the Board
of Directors.
3.6
Notice of
Meetings
. Notice of regular meetings of the Board of Directors
need not be given. Notice of every special meeting of the Board of
Directors will be given to each director at his or her usual place of business
or at such other address as will have been furnished by him or her for such
purpose. Such notice will be properly and timely given if it is (a)
deposited in the United States mail not later than the third calendar day
preceding the date of the meeting or (b) personally delivered, telegraphed, sent
by facsimile or electronic transmission or communicated by telephone at least
twenty-four hours before the time of the meeting. Such notice need
not include a statement of the business to be transacted at, or the purpose of,
any such meeting.
3.7
Waiver of
Notice
. Attendance of a director at a meeting of the Board of
Directors will constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. A written waiver of notice signed
by a director or directors entitled to such notice, whether before, at, or after
the time for notice or the time of the meeting, will be equivalent to the giving
of such notice.
3.8
Quorum
. Except
as may be otherwise provided by law, the Certificate of Incorporation or these
Bylaws, the presence of a majority of the directors then in office will be
necessary and sufficient to constitute a quorum for the transaction of business
at any meeting of the Board of Directors, and the act of a majority of the
directors present at a meeting at which a quorum is present will be deemed the
act of the Board of Directors. Less than a quorum may adjourn any
meeting of the Board of Directors from time to time without notice.
3.9
Participation in Meetings by
Telephone
. Members of the Board of Directors, or of any
committee thereof, may participate in a meeting of the Board of Directors or
committee thereof by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other and such participation will constitute presence in person at such
meeting.
3.10
Action Without a
Meeting
. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
committee thereof. Any such consent may be in counterparts and will
be effective on the date of the last signature thereon unless otherwise provided
therein.
3.11
Fees and Compensation of
Directors
. Unless otherwise provided by the Certificate of
Incorporation, or these Bylaws, the Board of Directors, by resolution or
resolutions may fix the compensation of directors. The directors may
be reimbursed for their expenses, if any, of attendance at each meeting of the
Board of Directors, and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as a director. Nothing
contained in these Bylaws shall preclude any director from serving the Company
in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE
4
COMMITTEES
4.1
Designation of
Committees
. The Board of Directors may establish one or more
committees for the performance of delegated or designated functions to the
extent permitted by law, each committee to consist of one or more directors of
the Company. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not such members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of such absent or disqualified member.
4.2
Committee Powers and
Authority
. Except to the extent otherwise required by law, the
Board of Directors may provide, by resolution or by amendment to these Bylaws,
that a committee may exercise all the power and authority of the Board of
Directors in the management of the business and affairs of the
Company.
ARTICLE
5
OFFICERS
5.1
Number
. The
officers of the Company will be appointed or elected by the Board of
Directors. The officers will be a chief executive officer, a
president, such number, if any, of executive vice presidents as the Board of
Directors may from time to time determine, such number, if any, of vice
presidents as the Board of Directors may from time to time determine, a
secretary, such number, if any, of assistant secretaries as the Board of
Directors may from time to time determine, and a treasurer. Any
person may hold two or more offices at the same time.
5.2
Additional
Officers
. The Board of Directors may appoint such other
officers as it may deem appropriate.
5.3
Term of Office;
Resignation
. All officers, agents and employees of the Company
will hold their respective offices or positions at the pleasure of the Board of
Directors and may be removed at any time by the Board of Directors with or
without cause. Any officer may resign at any time by giving written
notice of his or her resignation to the chief executive officer, the president,
or to the secretary, and acceptance of such resignation will not be necessary to
make it effective unless the notice so provides. Any vacancy
occurring in any office will be filled by the Board of Directors.
5.4
Duties
. The
officers of the Company will perform the duties and exercise the powers as may
be assigned to them from time to time by the Board of Directors or the president
and chief executive officer.
5.5
Salaries
. Subject
to any applicable law, regulation or stock exchange rule to which the Company
may be subject, the salaries of all officers of the Company shall be fixed by
the Board of Directors from time to time, and no officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a director of
the Company.
ARTICLE
6
CAPITAL
STOCK
6.1
Certificates
. The
shares of capital stock of the Company shall be represented by certificates,
unless the Board of Directors provides by resolution or resolutions that some or
all of the shares of any class or classes, or series thereof, of the Company’s
capital stock shall be uncertificated. Notwithstanding the adoption
of any such resolution or resolutions by the Board of Directors providing for
uncertificated shares, to the extent required by law, every holder of capital
stock of the Company represented by certificates, and upon request, every holder
of uncertificated shares, shall be entitled to a certificate representing such
shares. Certificates for shares of stock of the Company shall be
issued under the seal of the Company, or a facsimile thereof, and shall be
numbered and shall be entered in the books of the Company as they are
issued. Each certificate shall bear a serial number, shall exhibit
the holder’s name and the number of shares evidenced thereby, and shall be
signed by the chairman of the Board of Directors or a vice chairman, if any, or
the president, if any, or any vice president, and by the
secretary. Any or all of the signatures on the certificate may be a
facsimile. If 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, the certificate may be issued by the Company with the
same effect as if such person or entity were such officer, transfer agent, or
registrar at the date of issue.
6.2
Transfer of
Shares
. Certificated shares of the Company will only be
transferred on its books upon the surrender to the Company of the share
certificates duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer. The surrendered certificates
shall be canceled, new shares issued to the person entitled to them and the
transaction recorded on the books of the Company. Uncertificated
shares will only be transferred on the books of the Company upon the written
instruction from the registered owner of such uncertificated shares, or from a
duly authorized attorney or from an individual presenting proper evidence of
succession, assignment or authority to transfer the stock.
6.3
Registered
Stockholders
. The Company will be entitled to treat the holder
of record of any share or shares of stock of the Company as the holder in fact
thereof and, accordingly, will not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it has actual or other notice thereof, except as provided by
law.
6.4
Cancellation of
Certificates
. All certificates surrendered to the Company will
be canceled and, except in the case of lost, stolen or destroyed certificates,
no new certificates will be issued until the former certificate or certificates
for the same number of shares of the same class of stock have been surrendered
and canceled.
6.5
Lost, Stolen, or Destroyed
Certificates
. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost,
stolen, or destroyed upon the making of an affidavit of that fact in a form
acceptable to the Board of Directors by the person claiming the certificate or
certificates to be lost, stolen or destroyed. In its discretion, and
as a condition precedent to the issuance of any such new certificate or
certificates, the Board of Directors may require that the owner of such lost,
stolen or destroyed certificate or certificates, or such person’s legal
representative, give the Company and its transfer agent or agents, registrar or
registrars a bond in such form and amount as the Board of Directors may direct
as indemnity against any claim that may be made against the Company and its
transfer agent or agents, registrar or registrars on account of the alleged
loss, theft, or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE
7
FISCAL
YEAR
7.1
Fiscal
Year
. The Company’s fiscal year will end on the 31st of March
of each year.
ARTICLE
8
AMENDMENTS
8.1
Amendments
. Subject
to the provisions of the Certificate of Incorporation, these Bylaws may be
altered, amended, or repealed at any annual meeting of the stockholders or at
any special meeting of the stockholders duly called for that purpose by a
majority vote of the shares present in person or represented by proxy and
entitled to vote at such meeting. Subject to the laws of the State of
Delaware, the Certificate of Incorporation and these Bylaws, the Board of
Directors may amend these Bylaws or enact such other bylaws as in their judgment
may be advisable for the regulation of the conduct of the affairs of the
Company.
ARTICLE
9
MISCELLANEOUS
9.1
Books and
Records
.
(a)
Any books
or records maintained by the Company 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
,
however
, that the
books and records so kept can be converted into clearly legible paper form
within a reasonable time. The Company shall so convert any books or
records so kept upon the request of any person entitled to inspect such records
pursuant to the Certificate of Incorporation, these Bylaws, or the provisions of
the DGCL.
(b)
It shall
be the duty of the secretary or other officer of the Company who shall have
charge of the stock ledger to prepare and make, at least ten (10) days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote thereat, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the stockholder’s
name. Nothing contained in this subsection (b) shall require the
Company to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting for a period of at
least ten (10) days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the Company. In
the event that the Company determines to make the list available on an
electronic network, the Company may take reasonable steps to ensure that such
information is available only to stockholders of the Company. If the
meeting is to be held at a place, then the list shall 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 to be
held solely by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting on a
reasonably accessible network, and the information required to access such list
shall be provided with the notice of the meeting. The stock ledger
shall be the only evidence of the identity of the stockholders entitled to
examine such list.
(c)
Except to
the extent otherwise required by law, or by the Certificate of Incorporation, or
by these Bylaws, the Board of Directors shall determine from time to time
whether and, if allowed, when and under what conditions and regulations the
stock ledger, books, records, and accounts of the Company, or any of them, shall
be open to inspection by the stockholders and the stockholders’ rights, if any,
in respect thereof. Except as otherwise provided by law, the stock
ledger shall be the only evidence of the identity of the stockholders entitled
to examine the stock ledger, the books, records, or accounts of the
Company.
9.2
Voting Shares in Other
Business Entities
. Any officer of the Company designated by
the Board of Directors may vote any and all shares of stock or other equity
interest held by the Company in any other corporation or other business entity,
and may exercise on behalf of the Company any and all rights and powers incident
to the ownership of such stock or other equity interest.
9.3
Record Date for
Distributions and Other Actions
. In order that the Company may
determine the stockholders entitled to receive payment of any dividend or other
distribution, or allotment of any rights, or the stockholders entitled to
exercise any rights in respect of any change, conversion, or exchange of capital
stock, or for the purpose of any other lawful action, except as may otherwise be
provided in these Bylaws, the Board of Directors may fix a record
date. Such record date shall not precede the date upon which the
resolution fixing such record date is adopted and shall not be more than sixty
(60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be the close
of business on the day on which the Board of Directors adopts the resolution
relating thereto.
9.4
Electronic
Transmission
. For purposes of these Bylaws, “electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
9.5
Certificate of
Incorporation
. Notwithstanding anything to the contrary
contained herein, if any provision contained in these Bylaws is inconsistent
with or conflicts with a provision of the Certificate of Incorporation, such
provision of these Bylaws shall be superseded by the inconsistent provision in
the Certificate of Incorporation to the extent necessary to give effect to such
provision in the Certificate of Incorporation. [END]