UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 28, 2014
EQUAL ENERGY LTD.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware |
|
001-34759 |
|
98-0533758 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification Number) |
15 West 6th Street, Suite 1100
Tulsa, OK 74119
(Address
of principal executive offices, including zip code)
(918) 392-4793
(Registrants telephone number, including area code)
525 S. Main Street, Suite 1120
Tulsa, OK 74103
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.24d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.23e-4(c)) |
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
(a) Effective August 28, 2014, Equal Energy Ltd. (the Corporation) changed its jurisdiction of incorporation from
Alberta, Canada to the State of Delaware by means of a domestication (the Domestication) under Section 189 of the Business Corporations Act (Alberta) and Section 388 of the Delaware General Corporation Law.
In connection with the completion of the statutory plan of arrangement (the Arrangement) pursuant to which the Corporation became
a wholly owned subsidiary of Petroflow Energy Corporation (Petroflow), on July 31, 2014, Petroflow and Texoak Energy-Project 1C, LLC, as borrowers, entered into a $250 million first lien credit agreement (the First Lien
Credit Agreement) and a $103 million second lien credit agreement (the Second Lien Credit Agreement and, together with the First Lien Credit Agreement, the Credit Agreements and each a Credit
Agreement).
The First Lien Credit Agreement matures on July 31, 2017. The Second Lien Credit Agreement matures on
January 31, 2018. There is no scheduled amortization during the term of either Credit Agreement. Loans outstanding under the First Lien Credit Agreement may be voluntarily prepaid at the option of the borrowers, together with any
applicable premium, and, subject to the limitations set forth in the First Lien Credit Agreement and the intercreditor agreement, loans under the Second Lien Credit Agreement may be voluntarily prepaid at the option of the borrowers, together with
any applicable premium. The Credit Agreements contain customary mandatory prepayment requirements, including as a result of asset sales and an annual free cash flow sweep.
Interest rates under the First Lien Credit Agreement are determined, to the extent paid in cash, based on the floating LIBOR rate plus
8% per annum (subject to a LIBOR floor of 1%). Interest rates under the Second Lien Credit Agreement are based on a fixed rate of 12% per annum to extent paid in cash. Each of the First Lien Credit Agreement and Second Lien
Credit Agreement provides for an additional 3% of interest per annum for interest that is paid-in-kind.
Pursuant to the terms of the
Credit Agreements, the Corporation and its subsidiaries at the time of the Domestication became a guarantor the obligations of the borrowers under each of the First Lien Credit Agreement and Second Lien Credit Agreement. Substantially all of the
borrowers and the guarantors assets, including their respective interests in oil and gas properties, are pledged as security on a first or second lien basis, as applicable, under the First Lien Credit Agreement and Second Lien Credit
Agreement.
Each of the First Lien Credit Agreement and Second Lien Credit Agreement contains customary representations and warranties,
affirmative covenants, negative (including financial) covenants and events of default for financings of this type.
Item 3.03 |
Material Modification to Rights of Security Holders. |
(a) The information in
Items 2.03(a), 5.02(a), 5.02(d) and 5.03(a) is incorporated herein by reference.
The rights of holders of the Corporations common
stock are now governed by its Delaware certificate of incorporation, its Delaware by-laws and the Delaware General Corporation Law. The Delaware certificate of incorporation and the Delaware by-laws are filed as Exhibits 3.1 and 3.2 to this Current
Report on 8-K, respectively, and are hereby incorporated by reference into this Item 3.03.
Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(a) Immediately after the effective time of the Domestication, the board of directors of the Corporation (the Board) was
expanded to nine directors. Concurrently, Richard Menchaca was removed as a director of the Corporation and each of Robert J. Valentino, Barry J. Charles, Sanford Goldfarb, Randi M. Charles, Alan Dreeben and Fred Ziedman was elected a director of
the Corporation as of August 28, 2014. Richard N. Azar II, Don Rowden and Johnston Cairns continue to serve as directors of the Corporation.
(d) None of the new directors has any compensatory arrangement or understanding with the Corporation, sits on any committee of the Board
or has engaged in any related-party transaction with the Corporation since the beginning of the Corporations last fiscal year, and no such transaction is currently proposed.
Item 5.03 |
Amendments to Articles of Incorporation or By-Laws; Change in Fiscal Year. |
(a)
The information in Items 2.03(a) and 3.03(a) is incorporated herein by reference.
In connection with the Domestication, on
August 28, 2014, the Corporation adopted and filed with the Secretary of State of the State of Delaware a Certificate of Incorporation.
In connection with the Domestication and effective immediately after the Domestication, the Board of the Corporation approved and adopted the
Corporations Amended and Restated By-Laws.
Complete copies of the Certificate of Incorporation and the Amended and Restated By-Laws
are attached hereto as Exhibit 3.1 and 3.2, respectively, and are incorporated herein by reference.
On August 29, 2014, the Corporation changed its principal executive
office to 15 West 6th Street, Suite 1100, Tulsa, OK 74119.
Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits.
|
|
|
Exhibit No. |
|
Description of Exhibit |
|
|
3.1 |
|
Certificate of Incorporation of Equal Energy Ltd. |
|
|
3.2 |
|
Amended and Restated By-Laws of Equal Energy Ltd. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
|
|
|
|
EQUAL ENERGY LTD. |
|
|
|
|
Dated: September 4, 2014 |
|
|
|
By: |
|
/s/ Louis Schott |
|
|
|
|
|
|
Name: Louis Schott |
|
|
|
|
|
|
Title: Secretary and Treasurer |
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
EQUAL
ENERGY LTD.
ARTICLE ONE
The name of the corporation is Equal Energy Ltd. (hereinafter called the Corporation).
ARTICLE TWO
The address
of the Corporations registered office in the State of Delaware is 160 Greentree Drive, Suite 101, in the City of Dover, County of Kent, 19904. The name of its registered agent at such address is National Registered Agents, Inc.
ARTICLE THREE
The nature
of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
The total
number of shares of stock which the Corporation has authority to issue is 1,000 shares of Common Stock, with a par value of $.01 per share.
ARTICLE FIVE
The name
and mailing address of the sole incorporator are as follows:
|
|
|
NAME |
|
MAILING ADDRESS |
Petroflow Energy Corporation |
|
525 S. Main, Suite 1120 Tulsa, OK 74103 |
ARTICLE SIX
The Corporation is to have perpetual existence.
ARTICLE SEVEN
In
furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
ARTICLE EIGHT
Meetings
of stockholders may be held within or without the State of Delaware, as the by-laws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time
by the board of directors or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.
ARTICLE NINE
To the
fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
ARTICLE TEN
The
Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
ARTICLE
ELEVEN
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of
incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
2
ARTICLE TWELVE
To the maximum extent permitted from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy
of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors or stockholders, other than those officers, directors or stockholders who are
employees of the Corporation. No amendment or repeal of this ARTICLE TWELVE shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of the Corporation for or with respect to any opportunities
of which such officer, director, or stockholder becomes aware prior to such amendment or repeal.
* * * * *
3
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts stated herein are true, and accordingly have hereunto set my hand on
the 28th day of August, 2014.
|
|
|
PETROFLOW ENERGY CORPORATION, Sole Incorporator |
|
|
By: |
|
/s/ Richard Menchaca |
|
|
Richard Menchaca |
|
|
Its: Chief Executive Officer |
4
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
EQUAL ENERGY LTD.
A Delaware corporation
(Adopted as of August 28, 2014)
ARTICLE I
OFFICES
Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at 160 Greentree
Drive, Suite 101, in the City of Dover, County of Kent, 19904. The name of the corporations registered agent at such address shall be National Registered Agents, Inc. The registered office and/or registered agent of the corporation may be
changed from time to time by action of the board of directors.
Section 2 Other Offices. The corporation may also have offices
at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF
STOCKHOLDERS
Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred
twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any,
and/or the means of remote communication, of the annual meeting shall be determined by the president of the corporation; provided, however, that if the president does not act, the board of directors shall determine the date, time and
place, if any, and/or the means of remote communication, of such meeting. No annual meeting of stockholders need be held if not required by the corporations certificate of incorporation or by the General Corporation Law of the State of
Delaware.
Section 2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without
limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a written notice of meeting
or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than
fifty percent of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or remote communication, of any special meeting of
stockholders shall be determined by the president of the corporation; provided, however, that if the president does not act, the board of directors shall determine the date, time and place, if any, and/or the means of remote
communication, of such meeting.
Section 3 Place of Meetings. The board of directors may designate any place, either
within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal executive office of the corporation.
Section 4 Notice. Whenever
stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, 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 special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days
before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors,
the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the
corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic
mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later
of (1) such posting and (2) the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes
known to the secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends 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.
Section 5 Stockholders List. The officer who has charge of the stock ledger of the corporation shall make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, 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, for any purpose germane to the meeting, for a period of at least 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, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make
the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. 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 electronic network, and the information required to access such list shall be provided with the notice of the meeting.
2
Section 6 Quorum. The holders of a majority of the issued and outstanding shares of
capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporations certificate of incorporation. If
a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. When a quorum is once present to
commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any stockholders or their proxies.
Section 7
Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy
holders 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 corporation may transact any business which might have been transacted at
the original meeting. If 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.
Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the corporations certificate
of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the
corporations certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each
share of common stock held by such stockholder.
Section 10 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting 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. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the
secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.
3
Section 11 Action by Written Consent. Unless otherwise provided in the
corporations certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by
the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in the state of Delaware, or the corporations principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the
stockholders are recorded. Delivery made to the corporations registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in
accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the
corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders
at a meeting thereof.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of
the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic
transmission by a stockholder or proxyholder (or by any person authorized to act on such persons behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or
similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth
or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or
proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is
transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and
shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other
authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall re-execute the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its
principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
4
ARTICLE III
DIRECTORS
Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of
directors.
Section 2 Number, Election and Term of Office. The number of directors which shall constitute the board shall be
nine (9). Thereafter, the number of directors shall be established from time to time by the stockholders and, so long as TexOak Petro Holdings LLC remains the direct or indirector sole stockholder, in accordance with the TexOak Petro Holdings
Limited Liability Company Agreement, dated as of December 30, 2013 and as amended from time to time (the Board Composition Requirements). The directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote in the election of directors. The initial directors shall be Robert J. Valentino, Barry J. Charles, Sanford Goldfarb, Randi M. Charles, Richard N. Azar II, Alan Dreeben, Fred
Zeidman, Don Rowden and Johnston Cairns. The directors shall, except as hereinafter otherwise provided in Section 4 of this Article III, be elected by vote of the stockholders and, for so long as TexOak Petro Holdings LLC remains the sole
direct or indirect stockholder, in accordance with the Board Composition Requirements, and shall hold office until their respective successors are elected and qualified or until their earlier death, resignation or removal.
Section 3 Removal and Resignation. Subject to the Board Composition Requirements, any director or the entire board of directors
may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the
provisions of the corporations certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of
that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.
Section 4 Vacancies. Except as otherwise provided in the corporations certificate of incorporation, board vacancies and
newly created directorships resulting from any increase in the authorized number of directors shall be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall
hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than
notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.
Section 6
Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of
directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president on at least 24 hours notice to each director, either personally, by telephone, by
mail, and/or by electronic transmission. In like manner and on like notice, the president must call a special meeting on the written request of at least two of the directors promptly after receipt of such request.
5
Section 7 Quorum, Required Vote and Adjournment. A majority of the total number of
directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Except as otherwise required by the
corporations certificate of incorporation, each director shall be entitled to one vote on exactly the matter presented to the board for approval.
Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs
of the corporation, except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors
when required.
Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and
shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. In the event that a member and that members alternate, if alternates are designated by
the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.
Section 10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any
meeting of such board or 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 the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 11 Waiver of Notice and Presumption of Assent. Any member of the board
of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends 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. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless
his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
6
Section 12 Action by Written Consent. Unless otherwise restricted by the
corporations certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case
may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of 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.
ARTICLE IV
OFFICERS
Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a president and
chief executive officer, any number of vice-presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person.
In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 2
Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be
filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Section 4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise,
may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
Section 5
Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.
Section 6 The President and Chief Executive Officer. The President shall be the chief executive officer of the corporation.
Subject to the direction of the board of directors, the President shall have, and exercise, direct charge of, and general supervision over, the business and affairs of the corporation, and shall perform all duties incident to the office of a
President in a corporation organized under the Delaware General Corporation Law.
7
Section 7 Vice-presidents. The powers, duties, and responsibilities of the Vice
Presidents shall be fixed by the President, with the approval of the board of directors. A Vice President may be designated as an Executive Vice President, a Senior Vice President or a Vice President with a functional title.
Section 8 Secretary and Assistant Secretaries. The Secretary shall attend all meetings of the board of directors and record their
proceedings, unless a temporary secretary is appointed. The Secretary shall give due notice, as required, of all meetings of the board of directors, and the Secretary shall keep, or cause to be kept, at a place or places required by law, a record of
the members and officers of the corporation, giving the names and addresses of all such Stockholders and officers. The Secretary shall be the custodian of all records, contracts, leases and other papers and documents of the corporation, unless
otherwise directed by the board of directors, and shall perform such other duties as the board of directors, or the President, may designate. In the case of the Secretarys absence or incapacity, the President may designate an appropriate
person to perform the duties of the Secretary.
Section 9 Treasurer and Assistant Treasurer. The Treasurer shall receive, keep
and disburse all moneys belonging to or coming to the corporation, shall keep regular, true and full accounts of all receipts and disbursements, and make detailed reports thereof, shall keep a true record of expenses, losses, gains, assets, and
liabilities of the corporation, and shall perform such other duties in connection with the administration of the financial affairs of the corporation as the board of directors, or the President, may designate. In the case of the Treasurers
absence or incapacity, the President may designate an appropriate person to perform the duties of the Treasurer.
Section 10 Other
Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed
by resolution of the board of directors.
Section 11 Absence or Disability of Officers. In the case of the absence or
disability of any officer of the corporation and of any person hereby authorized to act in such officers place during such officers absence or disability, the board of directors may by resolution delegate the powers and duties of such
officer to any other officer or to any director, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that he or she is or was a director or officer of the corporation or is or was serving at the request
of the corporation as a director, officer, manager, general partner, employee, fiduciary, or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, may be indemnified and held harmless
by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same
8
exists or may hereafter be amended against all expense, liability and loss (including attorneys fees actually and reasonably incurred by such person in connection with such proceeding). The
corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.
Section 2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation
provided for under Section 1 of this Article V or advance of expenses provided for under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or
officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the
corporation shall be deemed to have approved the request. If the corporation wrongfully denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not properly made
within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such persons costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 3 Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the corporations certificate of incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 4 Insurance. The corporation may purchase
and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such
person against such liability under this Article V.
9
Section 5 Expenses. Expenses incurred by any person described in Section 1 of
this Article V in defending a proceeding shall be paid by the corporation in advance of such proceedings final disposition upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if
it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
Section 6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V
and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified, and
may be advanced expenses, to the extent authorized at any time or from time to time by the board of directors.
Section 7 Contract
Rights. The provisions of this Article V shall be deemed to be a vested contract right between the corporation and each director and officer who serves in any such capacity at any time while this Article V and the relevant provisions
of the General Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer at the time such person is elected or appointed to such position, and no repeal or
modification of this Article V or any such law shall affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding regardless of when occurring.
Section 8 Merger or Consolidation. For purposes of this Article V, references to the corporation shall include,
in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect
to such constituent corporation if its separate existence had continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the
corporation by the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer
agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death,
10
resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the
person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively
numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only
be transferred on the books of the corporation by the holder of record thereof or by such holders attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event,
it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company
organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.
Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any
certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his
or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of
such new certificate.
Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, 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 nor less than ten 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 a meeting of stockholders shall be the close of business on the next day 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. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned
meeting.
Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon which the resolution
11
fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the corporations registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is
required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such
prior action.
Section 5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful
action, 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, and which record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or
shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights
and powers of an owner. The corporation shall 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 shall have express or other notice thereof.
Section 7 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be
paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to
all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the
corporations certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the corporations
12
certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to
time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or
abolish any such reserve in the manner in which it was created.
Section 2 Checks, Drafts or Orders. All checks, drafts, or
other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such
manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
Section 3
Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 4 Loans. The corporation may lend money to, or guarantee
any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve,
including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.
Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall
have inscribed thereon the name of the corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited
liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general
or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written
demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the
13
corporations stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related
to such persons interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.
Section 9 Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any
substantive effect in limiting or otherwise construing any provision herein.
Section 10 Inconsistent Provisions. In the event
that any provision of these by-laws is or becomes inconsistent with any provision of the corporations certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these
by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These
by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors
shall not divest the stockholders of the same powers.
14
Equal Energy Ltd. (NYSE:EQU)
Historical Stock Chart
From Aug 2024 to Sep 2024
Equal Energy Ltd. (NYSE:EQU)
Historical Stock Chart
From Sep 2023 to Sep 2024