EXHIBIT 3(ii)
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BY-LAWS
OF
XXXXXXX XXXXX & CO., INC.
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Effective: April 27, 2001
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INDEX
to
BY-LAWS
of
XXXXXXX XXXXX & CO., INC.
PAGE
ARTICLE I - OFFICES.................................................... 1
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting........................... 1
Section 2. Special Meetings......................... 1
Section 3. Notice of, and Business at, Meetings..... 1
Section 4. Waiver of Notice......................... 3
Section 5. Organization............................. 3
Section 6. Inspectors of Election.............. .... 3
Section 7. Stockholders Entitled to Vote............ 4
Section 8. Quorum and Adjournment................... 4
Section 9. Order of Business........................ 4
Section 10. Vote of Stockholders..................... 4
Section 11. Shares Entitled to More
or Less Than One Vote.................... 5
ARTICLE III - BOARD OF DIRECTORS
Section 1. Election and Term........................ 5
Section 2. Qualification............................ 5
Section 3. Number................................... 5
Section 4. General Powers........................... 5
Section 5. Place of Meetings........................ 6
Section 6. Organization Meetings.................... 6
Section 7. Regular Meetings......................... 6
Section 8. Special Meetings; Notice
and Waiver of Notice..................... 6
Section 9. Organization of Meetings................. 7
Section 10. Quorum and Xxxxxx of Acting.............. 7
Section 11. Voting................................... 7
Section 12. Action without a Meeting................. 7
Section 13. Resignations............................. 8
Section 14. Removal of Directors..................... 8
Section 15. Vacancies................................ 8
Section 16. Directors' Compensation.................. 8
ARTICLE IV - COMMITTEES
Section 1. Constitution and Xxxxxx.................. 8
Section 2. Place of Meetings........................ 9
Section 3. Meetings; Notice and Waiver of Notice.... 9
Section 4. Organization of Meetings................. 9
Section 5. Quorum and Xxxxxx of Acting.............. 9
Section 6. Voting................................... 10
Section 7. Records.................................. 10
Section 8. Vacancies................................ 10
Section 9. Members' Compensation.................... 10
Section 10. Emergency Management Committee........... 10
ARTICLE V - THE OFFICERS
Section 1. Officers - Qualifications................ 11
Section 2. Term of Office; Vacancies................ 11
Section 3. Removal of Elected Officers.............. 11
Section 4. Resignations............................. 11
Section 5. Officers Holding More Than One Office.... 11
Section 6. The Chairman of the Board................ 11
Section 7. The President............................ 12
Section 8. The Vice Chairmen of the Board........... 12
Section 9. The Executive Vice Presidents............ 13
Section 10. The Senior Vice Presidents............... 13
Section 11. The Vice Presidents...................... 13
Section 12. The Secretary............................ 13
Section 13. The Treasurer............................ 13
Section 14. Additional Duties and Authority.......... 14
Section 15. Compensation............................. 14
ARTICLE VI - STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates....................... 14
Section 2. Transfers of Stock....................... 14
Section 3. Lost Certificates........................ 14
Section 4. Determination of Holders of Record
for Certain Purposes..................... 15
ARTICLE VII - CORPORATE SEAL
Section 1. Seal..................................... 15
Section 2. Affixing and Attesting................... 15
ARTICLE VIII - MISCELLANEOUS
Section 1. Fiscal Year.............................. 15
Section 2. Signatures on Negotiable Instruments..... 15
Section 3. References to Article and Section Numbers
and to the By-Laws and the
Certificate of Incorporation............. 16
ARTICLE IX - AMENDMENTS................................................. 16
BY-LAWS
OF
XXXXXXX XXXXX & CO., INC.
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ARTICLE I.
OFFICES
Xxxxxxx Xxxxx & Co., Inc. (hereinafter called the "Corporation") may
establish or discontinue, from time to time, such offices and places of business
within or without the State of Delaware as the Board of Directors may deem
proper for the conduct of the Corporation's business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the holders of shares of
such classes or series of stock as are entitled to notice thereof and to vote
thereat pursuant to the provisions of the Certificate of Incorporation
(hereinafter called the "Annual Meeting of Stockholders") for the purpose of
electing directors and transacting such other business as may come before it
shall be held in each year at such time, on such day and at such place, within
or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 2. Special Meetings. In addition to such meetings as are provided
for by law or by the Certificate of Incorporation, special meetings of the
holders of any class or series or of all classes or series of the Corporation's
stock may be called at any time by the Board of Directors pursuant to a
resolution adopted by the affirmative vote of a majority of the entire Board of
Directors and may be held at such time, on such day and at such place, within or
without the State of Delaware, as shall be designated by the Board of Directors.
Section 3. Notice of, and Business at, Meetings.
a. Notice. Except as otherwise provided by law, notice of each meeting of
stockholders shall be given either by delivering a written notice personally or
mailing a written notice to each stockholder of record entitled to vote thereat
or by providing notice in such other form and by such other method as may be
permitted by Delaware law. If mailed, the notice shall be directed to the
stockholder in a postage-prepaid envelope at his address as it appears on the
stock books of the Corporation unless, prior to the time of mailing, he shall
have filed with the Secretary a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to the address
designated in such request. Notice of each meeting of stockholders shall be in
such form as is approved by the Board of Directors and shall state the purpose
or purposes for which the meeting is called, the date and time when and the
place where it is to be held, and shall be delivered personally or mailed not
more than sixty (60) days and not less than ten (10) days before the day of the
meeting. Except as otherwise provided by law, the business which may be
transacted at any special meeting of stockholders shall consist of and be
limited to the purpose or purposes so stated in such notice. The Secretary or an
Assistant Secretary or the Transfer Agent of the Corporation shall, after giving
such notice, make an affidavit stating that notice has been given, which shall
be filed with the minutes of such meeting.
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b. Business. No business may be transacted at an annual meeting of
stockholders, 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), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation who (i)
is a stockholder of record on the date of the giving of the notice provided for
in this Section 3(b) and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) complies with the
notice procedures set forth in this Section 3(b).
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received by the Secretary of the Corporation not less than fifty
(50) days prior to the date of the annual meeting of stockholders; provided,
that in the event that less than 60 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual 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 Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
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 (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 3(b), provided, however, that, once business has been
properly brought before the annual meeting in accordance with such procedures,
nothing in this Section 3(b) shall be deemed to preclude discussion by any
stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
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Section 4. Waiver of Notice. Whenever notice is required to be given under
any provision of law or of the Certificate of Incorporation or the By-Laws, a
waiver thereof in writing or by telegraph, cable or other form of recorded
communication, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting of stockholders shall constitute a waiver of notice of such
meeting, except when the person attends such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any meeting of stockholders need be
specified in any waiver of notice unless so required by the Certificate of
Incorporation.
Section 5. Organization. The Chairman of the Board shall act as chairman at
all meetings of stockholders at which he is present, and as such chairman shall
call such meetings of stockholders to order and preside thereat. If the Chairman
of the Board shall be absent from any meeting of stockholders, the duties
otherwise provided in this Section 5 of Article II to be performed by him at
such meeting shall be performed at such meeting by the officer prescribed by
Section 6 of Article V. The Secretary of the Corporation shall act as secretary
at all meetings of the stockholders, but in his absence the chairman of the
meeting may appoint any person present to act as secretary of the meeting.
Section 6. Inspectors of Election. a. The Chairman of the Board shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Chairman of the Board may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting 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 duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
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b. The inspectors shall: (1) ascertain the number of shares
outstanding and the voting power of each; (2) determine the shares represented
at a meeting and the validity of proxies and ballots; (3) count all votes and
ballots; (4) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(5) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
their duties.
Section 7. Stockholders Entitled to Vote. The Board of Directors may fix a
date not more than sixty (60) days nor less than ten (10) days prior to the date
of any meeting of stockholders, as a record date for the determination of the
stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to notice of, and to vote at, such meeting and any adjournment thereof,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board of Directors establishes such record date. The Secretary
shall prepare and make or cause to be prepared and made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, arranged in alphabetical order and showing the
address of each such stockholder and the number of shares registered in the name
of each such stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place, specified in the notice of the meeting, within the city where the meeting
is to be held, or, if not so specified, at the place where the meeting is to be
held. Such list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and subject to the inspection of any stockholder
who may be present.
Section 8. Quorum and Adjournment. Except as otherwise provided by law or
by the Certificate of Incorporation, the holders of a majority of the shares of
stock entitled to vote at the meeting present in person or by proxy without
regard to class or series shall constitute a quorum at all meetings of the
stockholders. In the absence of a quorum, the holders of a majority of such
shares of stock present in person or by proxy may adjourn any meeting, from time
to time, until a quorum shall be present. At any such adjourned meeting at which
a quorum may be present, any business may be transacted which might have been
transacted at the meeting as originally called. No notice of any adjourned
meeting need be given other than by announcement at the meeting that is being
adjourned, provided that if the adjournment is for more than thirty (30) days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, then a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
Section 10. Vote of Stockholders. Except as otherwise required by law or by
the Certificate of Incorporation or by the By-Laws, all action by stockholders
shall be taken at a stockholders' meeting. Every stockholder of record, as
determined pursuant to Section 7 of this Article II, and who is entitled to
vote, shall, except as otherwise expressly provided in the Certificate of
Incorporation with respect to any class or series of the Corporation's capital
stock, be entitled at every meeting of the stockholders to one vote for every
share of stock standing in his name on the books of the Corporation. Every
stockholder entitled to vote may authorize another person or persons to act for
him by proxy duly appointed by an instrument in writing, subscribed by such
stockholder and executed not more than three (3) years prior to the meeting,
unless the instrument provides for a longer period. The attendance at any
meeting of stockholders of a stockholder who may theretofore have given a proxy
shall not have the effect of revoking such proxy. Election of directors shall be
by written ballot but, unless otherwise provided by law, no vote on any question
upon which a vote of the stockholders may be taken need be by ballot unless the
chairman of the meeting shall determine that it shall be by ballot or the
holders of a majority of the shares of stock present in person or by proxy and
entitled to participate in such vote shall so demand. In a vote by ballot each
ballot shall state the number of shares voted and the name of the stockholder or
proxy voting. Except as otherwise provided in Sections 14 and 15 of Article III
or by the Certificate of Incorporation, directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors. Except as
otherwise provided by law or by the Certificate of Incorporation, the
affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject shall be the act of the
stockholders.
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Section 11. Shares Entitled to More or Less than One Vote. If any class or
series of the Corporation's capital stock shall be entitled to more or less than
one vote for any share, on any matter, every reference in the By-Laws to a
majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Election and Term. Except as otherwise provided by law or by the
Certificate of Incorporation, and subject to the provisions of Sections 13, 14
and 15 of this Article III, directors shall be elected at the Annual Meeting of
Stockholders to serve until the Annual Meeting of Stockholders in the third year
following their election and until their successors are elected and qualify or
until their earlier resignation or removal.
Section 2. Qualification. No one shall be a director who is not the owner
of shares of Common Stock of the Corporation. Acceptance of the office of
director may be expressed orally or in writing.
Section 3. Number. The number of directors may be fixed from time to time
by resolution of the Board of Directors but shall not be less than three (3) nor
more than thirty (30).
Section 4. General Powers. The business, properties and affairs of the
Corporation shall be managed by, or under the direction of, the Board of
Directors, which, without limiting the generality of the foregoing, shall have
power to elect and appoint officers of the Corporation, to appoint and direct
agents, to grant general or limited authority to officers, employees and agents
of the Corporation to make, execute and deliver contracts and other instruments
and documents in the name and on behalf of the Corporation and over its seal,
without specific authority in each case, and, by resolution adopted by a
majority of the whole Board of Directors, to appoint committees of the Board of
Directors in addition to those appointed pursuant to Article IV hereof, the
membership of which may consist of one or more directors, and which may advise
the Board of Directors with respect to any matters relating to the conduct of
the Corporation's business. The Board of Directors may designate one or more
directors as alternate members of any committee, including those appointed
pursuant to Article IV hereof, who may replace any absent or disqualified member
at any meeting of the committee. In addition, the Board of Directors may
exercise all the powers of the Corporation and do all lawful acts and things
which are not reserved to the stockholders by law or by the Certificate of
Incorporation.
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Section 5. Place of Meetings. Meetings of the Board of Directors may be
held at any place, within or without the State of Delaware, from time to time
designated by the Board of Directors.
Section 6. Organization Meeting. A newly elected Board of Directors may
meet and organize, and also may transact any other business which might be
transacted at a regular meeting on the day of the Annual Meeting of
Stockholders, at the place at which such meeting of stockholders took place,
without notice of such meeting, provided a majority of the whole Board of
Directors is present. Such organization meeting may otherwise be held at any
other time or place which may be specified in a notice given in the manner
provided in Section 8 of this Article III for special meetings of the Board of
Directors, or in a waiver of notice thereof.
Section 7. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times as may be determined by resolution of the Board of
Directors and no notice shall be required for any regular meeting. Except as
otherwise provided by law, any business may be transacted at any regular meeting
of the Board of Directors.
Section 8. Special Meetings; Notice and Waiver of Notice. Special meetings
of the Board of Directors shall be called by the Secretary on the request of the
Chairman of the Board, the President or a Vice Chairman of the Board, or on the
request in writing of any three other directors stating the purpose or purposes
of such meeting. Notice of any special meeting shall be in form approved by the
Chairman of the Board, the President or a Vice Chairman of the Board, as the
case may be. Notices of special meetings shall be mailed to each director,
addressed to him at his residence or usual place of business, not later than two
(2) days before the day on which the meeting is to be held, or shall be sent to
him at such place by telegraph, cable or other form of recorded communication or
be delivered personally or by telephone, not later than the day before such day
of meeting. Notice of any meeting of the Board of Directors need not be given to
any director if he shall sign a written waiver thereof either before or after
the time stated therein, or if he shall attend a meeting, except when he attends
such meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in any
notice or written waiver of notice unless so required by the Certificate of
Incorporation or by the By-Laws. Unless limited by law, by the Certificate of
Incorporation or by the By-Laws, any and all business may be transacted at any
special meeting.
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Section 9. Organization of Meetings. The Chairman of the Board shall
preside at all meetings of the Board of Directors at which he is present. If the
Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 9 of Article III to be
performed by him at such meeting shall be performed at such meeting by the
officer prescribed by Section 6 of Article V. If no such officer is present at
such meeting, one of the directors present shall be chosen by the members of the
Board of Directors present to preside at such meeting. The Secretary of the
Corporation shall act as the secretary at all meetings of the Board of
Directors, and in his absence a temporary secretary shall be appointed by the
chairman of the meeting.
Section 10. Quorum and Xxxxxx of Acting. Except as otherwise provided by
Section 6 of this Article III, at every meeting of the Board of Directors
one-third (1/3) of the total number of directors constituting the whole Board of
Directors shall constitute a quorum but in no event shall a quorum be
constituted by less than two (2) directors. Except as otherwise provided by law
or by the Certificate of Incorporation, or by Section 15 of this Article III, or
by Section 1 or Section 8 of Article IV, or by Section 3 of Article V, or by
Article IX, the act of a majority of the directors present at any such meeting,
at which a quorum is present, shall be the act of the Board of Directors. In the
absence of a quorum, a majority of the directors present may adjourn any
meeting, from time to time, until a quorum is present. No notice of any
adjourned meeting need be given other than by announcement at the meeting that
is being adjourned. Members of the Board of Directors or any committee thereof
may participate in a meeting of the Board of Directors or of such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation by a member of the Board of Directors in a meeting pursuant to
this Section 10 of Article III shall constitute his presence in person at such
meeting.
Section 11. Voting. On any question on which the Board of Directors shall
vote, the names of those voting and their votes shall be entered in the minutes
of the meeting if any member of the Board of Directors so requests at the time.
Section 12. Action without a Meeting. Except as otherwise provided by law
or by the 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 prior to such action all members of the Board of
Directors or of such committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or the committee.
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Section 13. Resignations. Any director may resign at any time upon written
notice of resignation to the Corporation. Any resignation shall be effective
immediately unless a date certain is specified for it to take effect, in which
event it shall be effective upon such date, and acceptance of any resignation
shall not be necessary to make it effective, irrespective of whether the
resignation is tendered subject to such acceptance.
Section 14. Removal of Directors. Subject to the rights of the holders of
any series of Preferred Stock or any other class of capital stock of the
Corporation (other than the Common Stock) then outstanding, (i) any director, or
the entire Board of Directors, may be removed from office at any time, but only
for cause, by the affirmative vote of the holders of record of outstanding
shares representing at least 80% of the voting power of all the shares of
capital stock of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class, and (ii) any director may be
removed from office at any time, but only for cause, by the affirmative vote of
a majority of the entire Board of Directors.
Section 15. Vacancies. Subject to the rights of the holders of any series
of Preferred Stock or any other class of capital stock of the Corporation (other
than the Common Stock) then outstanding, any vacancies in the Board of Directors
for any reason, including by reason of any increase in the number of directors,
shall, if occurring prior to the expiration of the term of office of the class
in which such vacancy occurs, be filled only by the Board of Directors, acting
by the affirmative vote of a majority of the remaining directors then in office,
although less than a quorum, and any directors so elected shall hold office
until the next election of the class for which such directors have been elected
and until their successors are elected and qualify.
Section 16. Directors' Compensation. Any and all directors may receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV.
COMMITTEES
Section 1. Constitution and Powers. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint one or more committees of the Board of Directors, which
committees shall have such powers and duties as the Board of Directors shall
properly determine. Unless otherwise provided by the Board of Directors, no such
other committee of the Board of Directors shall be composed of fewer than two
(2) directors.
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Section 2. Place of Meetings. Meetings of any committee of the Board of
Directors may be held at any place, within or without the State of Delaware,
from time to time designated by the Board of Directors or such committee.
Section 3. Meetings; Notice and Waiver of Notice. Regular meetings of any
committee of the Board of Directors shall be held at such times as may be
determined by resolution either of the Board of Directors or of such committee
and no notice shall be required for any regular meeting. Special meetings of any
committee shall be called by the secretary thereof upon request of any two
members thereof. Notice of any special meeting of any committee shall be in form
approved by the Chairman of the Board, the President or a Vice Chairman of the
Board, as the case may be. Notices of special meetings shall be mailed to each
member, addressed to him at his residence or usual place of business, not later
than two (2) days before the day on which the meeting is to be held, or shall be
sent to him at such place by telegraph, cable or any other form of recorded
communication, or be delivered personally or by telephone, not later than the
day before such day of meeting. Neither the business to be transacted at, nor
the purpose of, any special meeting of any committee, need be specified in any
notice or written waiver of notice unless so required by the Certificate of
Incorporation or the By-Laws. Notices of any such meeting need not be given to
any member of any committee, however, if waived by him as provided in Section 8
of Article III, and the provisions of such Section 8 with respect to waiver of
notice of meetings of the Board of Directors shall apply to meetings of any
committee as well.
Section 4. Organization of Meetings. The most senior officer of the
Corporation present, if any be members of the committee, and, if not, the
director present who has served the longest as a director, except as otherwise
expressly provided by the Board of Directors or the committee, shall preside at
all meetings of any committee. The Secretary of the Corporation, except as
otherwise expressly provided by the Board of Directors, shall act as secretary
at all meetings of any committee and in his absence a temporary secretary shall
be appointed by the chairman of the meeting.
Section 5. Quorum and Xxxxxx of Acting. One-third (1/3) of the members of
any committee then in office shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any meeting at which a
quorum is present, shall be the act of such committee. In the absence of a
quorum, a majority of the members of any committee present, or, if two or fewer
members shall be present, any member of the committee present or the Secretary,
may adjourn any meeting, from time to time, until a quorum is present. No notice
of any adjourned meeting need be given other than by announcement at the meeting
that is being adjourned. The provisions of Section 10 of Article III with
respect to participation in a meeting of a committee of the Board of Directors
and the provisions of Section 12 of Article III with respect to action taken by
a committee of the Board of Directors without a meeting shall apply to
participation in meetings of and action taken by any committee.
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Section 6. Voting. On any question on which any committee shall vote, the
names of those voting and their votes shall be entered in the minutes of the
meeting if any member of such committee so requests.
Section 7. Records. All committees shall keep minutes of their acts and
proceedings, which shall be submitted at the next regular meeting of the Board
of Directors unless sooner submitted at an organization or special meeting of
the Board of Directors, and any action taken by the Board of Directors with
respect thereto shall be entered in the minutes of the Board of Directors.
Section 8. Vacancies. Any vacancy among the appointed members or alternate
members of any committee of the Board of Directors may be filled by affirmative
vote of a majority of the whole Board of Directors.
Section 9. Members' Compensation. Members of all committees may receive
such reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any member of any committee from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 10. Emergency Management Committee. In the event that a quorum of
the Board of Directors cannot readily be convened as a result of emergency
conditions following a catastrophe or disaster, then all the powers and duties
vested in the Board of Directors shall vest automatically in an Emergency
Management Committee which shall consist of all readily available members of the
Board of Directors and which Committee shall have and may exercise all of the
powers of the Board of Directors in the management of the business and affairs
of the Corporation. Two members shall constitute a quorum. Other provisions of
these By-Laws notwithstanding, the Emergency Management Committee shall call a
meeting of the Board of Directors as soon as circumstances permit, for the
purpose of filling vacancies on the Board of Directors and its committees and to
take such other action as may be appropriate; and if the Emergency Management
Committee determines that less than a majority of the members of the Board of
Directors are available for service, the Emergency Management Committee shall,
as soon as practicable, issue a call for a special meeting of stockholders for
the election of directors. The powers of the Emergency Management Committee
shall terminate upon the convening of the meeting of the Board of Directors
above prescribed at which a majority of the members thereof shall be present, or
upon the convening of the above prescribed meeting of stockholders, whichever
first shall occur.
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ARTICLE V.
THE OFFICERS
Section 1. Officers - Qualifications. The elected officers of the
Corporation shall be a Chairman of the Board, a Secretary and a Treasurer and
may also include one or more Vice Chairmen of the Board, a President, one or
more Executive Vice Presidents, one or more Senior Vice Presidents and one or
more Vice Presidents. The elected officers shall be elected by the Board of
Directors. The Chairman of the Board, the President and each Vice Chairman of
the Board, shall be selected from the directors. Assistant Secretaries,
Assistant Treasurers and such other officers as may be deemed necessary or
appropriate may be appointed by the Board of Directors or may be appointed
pursuant to Section 6 of this Article V.
Section 2. Term of Office; Vacancies. So far as is practicable, all elected
officers shall be elected at the organization meeting of the Board of Directors
in each year, and except as otherwise provided in Sections 3 and 4, and subject
to the provisions of Section 6, of this Article V, shall hold office until the
organization meeting of the Board of Directors in the next subsequent year and
until their respective successors are elected and qualify or until their earlier
resignation or removal. All appointed officers shall hold office during the
pleasure of the Board of Directors and the Chairman of the Board. If any vacancy
shall occur in any office, the Board of Directors may elect or appoint a
successor to fill such vacancy for the remainder of the term.
Section 3. Removal of Elected Officers. Any elected officer may be removed
at any time, either for or without cause, by affirmative vote of a majority of
the whole Board of Directors, at any regular meeting or at any special meeting
called for the purpose and, in the case of any officer not more senior than a
Senior Vice President, by affirmative vote of a majority of the whole committee
of the Board of Directors so empowered at any regular meeting or at any special
meeting called for the purpose.
Section 4. Resignations. Any officer may resign at any time, upon written
notice of resignation to the Corporation. Any resignation shall be effective
immediately unless a date certain is specified for it to take effect, in which
event it shall be effective upon such date, and acceptance of any resignation
shall not be necessary to make it effective, irrespective of whether the
resignation is tendered subject to such acceptance.
Section 5. Officers Holding More Than One Office. Any officer may hold two
or more offices the duties of which can be consistently performed by the same
person.
Section 6. The Chairman of the Board. The Chairman of the Board shall be
the chief executive officer of the Corporation. He shall direct, coordinate and
control the Corporation's business and activities and its operating expenses and
capital expenditures, and shall have general authority to exercise all the
powers necessary for the chief executive officer of the Corporation, all in
accordance with basic policies established by and subject to the control of the
Board of Directors. He shall be responsible for the employment or appointment of
employees, agents and officers (except officers to be elected by the Board of
Directors pursuant to Section 1 of this Article V) as may be required for the
conduct of the business and the attainment of the objectives of the Corporation,
and shall have authority to fix compensation as provided in Section 15 of this
Article V. He shall have authority to suspend or to remove any employee, agent
or appointed officer of the Corporation and to suspend for cause any elected
officer of the Corporation and, in the case of the suspension for cause of any
such elected officer, to recommend to the Board of Directors what further action
should be taken. He shall have general authority to execute bonds, deeds and
contracts in the name and on behalf of the Corporation. As provided in Section 5
of Article II, he shall act as chairman at all meetings of the stockholders at
which he is present, and, as provided in Section 9 of Article III, he shall
preside at all meetings of the Board of Directors at which he is present. In the
absence of the Chairman of the Board, his duties shall be performed and his
authority may be exercised by the President, and, in the absence of the Chairman
of the Board and the President, such duties shall be performed and such
authority may be exercised by such officer as may have been designated by the
most senior officer of the Corporation who has made any such designation, with
the right reserved to the Board of Directors to make the designation or
supersede any designation so made.
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Section 7. The President. The President, if any, shall be the chief
operating officer of the Corporation. He shall implement the general directives,
plans and policies formulated by the Chairman of the Board pursuant to the
By-Laws, in general shall have authority to exercise all powers delegated to him
by the Chairman of the Board and shall establish operating and administrative
plans and policies and direct and coordinate the Corporation's organizational
components, within the scope of the authority delegated to him by the Board of
Directors or the Chairman of the Board. He shall have general authority to
execute bonds, deeds and contracts in the name and on behalf of the Corporation
and responsibility for the employment or appointment of such employees, agents
and officers (except officers to be elected by the Board of Directors pursuant
to Section 1 of this Article V) as may be required to carry on the operations of
the business and authority to fix compensation of such employees, agents and
officers as provided in Section 15 of this Article V. He shall have authority to
suspend or to remove any employee or agent of the Corporation (other than
officers). As provided in Section 6 of this Article V, in the absence of the
Chairman of the Board, the President shall perform all the duties and exercise
the authority of the Chairman of the Board. In the absence of the President, his
duties shall be performed and his authority may be exercised by the Chairman of
the Board. In the absence of the President and the Chairman of the Board, the
duties of the President shall be performed and his authority may be exercised by
such officer as may have been designated by the most senior officer of the
Corporation who has made any such designation, with the right reserved to the
Board of Directors to make the designation or supersede any designation so made.
Section 8. The Vice Chairmen of the Board. The several Vice Chairmen of the
Board, if any, shall perform such duties and may exercise such authority as may
from time to time be conferred upon them by the Board of Directors, the Chairman
of the Board or the President.
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Section 9. The Executive Vice Presidents. The several Executive Vice
Presidents, if any, shall perform such duties and may exercise such authority as
may from time to time be conferred upon them by the Board of Directors, the
Chairman of the Board or the President.
Section 10. The Senior Vice Presidents. The several Senior Vice Presidents,
if any, shall perform such duties and may exercise such authority as may from
time to time be conferred upon them by the Board of Directors, the Chairman of
the Board, the President, any Vice Chairman of the Board or any Executive Vice
President.
Section 11. The Vice Presidents. The several Vice Presidents, if any, shall
perform such duties and may exercise such authority as may from time to time be
conferred upon them by the Board of Directors, the Chairman of the Board, the
President, any Vice Chairman of the Board or any Executive Vice President.
Section 12. The Secretary. The Secretary shall attend to the giving of
notice of all meetings of stockholders and of the Board of Directors and
committees thereof, and, as provided in Section 5 of Article II and Section 9 of
Article III, shall keep minutes of all proceedings at meetings of the
stockholders and of the Board of Directors at which he is present, as well as of
all proceedings at all meetings of committees of the Board of Directors at which
he has served as secretary, and where some other person has served as secretary
thereto, the Secretary shall maintain custody of the minutes of such
proceedings. As provided in Section 2 of Article VII, he shall have charge of
the corporate seal and shall have authority to attest any and all instruments or
writings to which the same may be affixed. He shall keep and account for all
books, documents, papers and records of the Corporation, except those for which
some other officer or agent is properly accountable. He shall generally perform
all the duties usually appertaining to the office of secretary of a corporation.
In the absence of the Secretary, such person as shall be designated by the
Chairman of the Board shall perform his duties.
Section 13. The Treasurer. The Treasurer shall have the care and custody of
all the funds of the Corporation and shall deposit the same in such banks or
other depositories as the Board of Directors or any officer or officers, or any
officer and agent jointly, thereunto duly authorized by the Board of Directors,
shall, from time to time, direct or approve. Except as otherwise provided by the
Board of Directors or in the Corporation's plan of organization, the Treasurer
shall keep a full and accurate account of all moneys received and paid on
account of the Corporation, shall render a statement of accounts whenever the
Board of Directors shall require, shall perform all other necessary acts and
duties in connection with the administration of the financial affairs of the
Corporation and shall generally perform all the duties usually appertaining to
the office of the treasurer of a corporation. Whenever required by the Board of
Directors, the Treasurer shall give bonds for the faithful discharge of the
duties of that office in such sums and with such sureties as the Board of
Directors shall approve. In the absence of the Treasurer, such person as shall
be designated by the President shall perform such duties.
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Section 14. Additional Duties and Authority. In addition to the foregoing
specifically enumerated duties and authority, the several officers of the
Corporation shall perform such other duties and may exercise such further
authority as the Board of Directors may, from time to time, determine, or as may
be assigned to them by any superior officer.
Section 15. Compensation. Except as fixed or controlled by the Board of
Directors or otherwise, compensation of all officers and employees shall be
fixed by the Chairman of the Board, or by the President within the limits
approved by the Chairman of the Board, or by other officers of the Corporation
exercising authority granted to them under the plan of organization of the
Corporation.
ARTICLE VI.
STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates. The capital stock of the Corporation shall
be represented by certificates signed by, or in the name of the Corporation by,
the Chairman of the Board, the President or a Vice Chairman of the Board, and by
the Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer, and sealed with the seal of the Corporation. If such stock
certificate is countersigned by a Transfer Agent other than the Corporation or
its employee or by a Registrar other than the Corporation or its employee, any
other signature on the certificate may be a facsimile, engraved or printed. Such
seal may be a facsimile, engraved or printed. In case any such 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 by the Corporation, it may
nevertheless be issued by the Corporation with the same effect as if such
officer, Transfer Agent or Registrar had not ceased to be such at the date of
its issue. The certificates representing the capital stock of the Corporation
shall be in such form as shall be approved by the Board of Directors.
Section 2. Transfers of Stock. Transfers of stock shall be made on the
books of the Corporation by the person named in the certificate, or by an
attorney lawfully constituted in writing, and upon surrender and cancellation of
a certificate or certificates for a like number of shares of the same class or
series of stock, duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, and with such proof of the authenticity of
the signatures as the Corporation or its agents may reasonably require and with
all required stock transfer tax stamps affixed thereto and canceled or
accompanied by sufficient funds to pay such taxes.
Section 3. Lost Certificates. In case any certificate of stock shall be
lost, stolen or destroyed, the Board of Directors, in its discretion, or any
officer or officers thereunto duly authorized by the Board of Directors, may
authorize the issue of a substitute certificate in place of the certificate so
lost, stolen or destroyed; provided, however, that, in each such case, the
applicant for a substitute certificate shall furnish evidence to the
Corporation, which it determines in its discretion is satisfactory, of the loss,
theft or destruction of such certificate and of the ownership thereof, and also
such security or indemnity as may be required by it.
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Section 4. Determination of Holders of Record for Certain Purposes. In
order to determine the stockholders or other holders of securities entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of capital stock or other securities or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, not
more than sixty (60) days prior to the date of payment of such dividend or other
distribution or allotment of such rights or the date when any such rights in
respect of any change, conversion or exchange of stock or securities may be
exercised, and in such case only holders of record on the date so fixed shall be
entitled to receive payment of such dividend or other distribution or to receive
such allotment of rights, or to exercise such rights, notwithstanding any
transfer of any stock or other securities on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board of Directors establishes such record date.
ARTICLE VII.
CORPORATE SEAL
Section 1. Seal. The seal of the Corporation shall be in the form of a
circle and shall bear the name of the Corporation and in the center of the
circle the words "Corporate Seal, Delaware" and the figures "1973".
Section 2. Affixing and Attesting. The seal of the Corporation shall be in
the custody of the Secretary, who shall have power to affix it to the proper
corporate instruments and documents, and who shall attest it. In his absence, it
may be affixed and attested by an Assistant Secretary, or by the Treasurer or an
Assistant Treasurer or by any other person or persons as may be designated by
the Board of Directors.
ARTICLE VIII.
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the
last Friday of December in each year and the succeeding fiscal year shall begin
on the day next succeeding the last day of the preceding fiscal year.
Section 2. Signatures on Negotiable Instruments. All bills, notes, checks
or other instruments for the payment of money shall be signed or countersigned
by such officers or agents and in such manner as, from time to time, may be
prescribed by resolution (whether general or special) of the Board of Directors,
or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board of Directors.
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Section 3. References to Article and Section Numbers and to the By-Laws and
the Certificate of Incorporation. Whenever in the By-Laws reference is made to
an Article or Section number, such reference is to the number of an Article or
Section of the By-Laws. Whenever in the By-Laws reference is made to the
By-Laws, such reference is to these By-Laws of the Corporation, as amended, and
whenever reference is made to the Certificate of Incorporation, such reference
is to the Certificate of Incorporation of the Corporation, as amended, including
all documents deemed by the General Corporation Law of the State of Delaware to
constitute a part thereof.
ARTICLE IX.
AMENDMENTS
The By-Laws may be altered, amended or repealed at any Annual Meeting of
Stockholders, or at any special meeting of holders of shares of stock entitled
to vote thereon, provided that in the case of a special meeting notice of such
proposed alteration, amendment or repeal be included in the notice of meeting,
by a vote of the holders of a majority of the shares of stock present in person
or by proxy at the meeting and entitled to vote thereon, or (except as otherwise
expressly provided in any By-Law adopted by the stockholders) by the Board of
Directors at any valid meeting by affirmative vote of a majority of the whole
Board of Directors.
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