Exhibit B-212
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GPU ARGENTINA HOLDINGS, INC.
By-Laws
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BY-LAWS
1. The principal office of GPU ARGENTINA HOLDINGS, INC. (the
"Corporation") shall be in Parsippany, New Jersey. The Corporation may also
have offices at such other places as the Board of Directors may from time to
time designate or the business of the Corporation may require.
SEAL
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2. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization, and the words "Corporate Seal" and
"Delaware". If authorized by the Board of Directors, the corporate seal may be
affixed to any certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving, lithographing or
printing thereon such seal or a facsimile thereof, and such seal or facsimile
thereof so engraved, lithographed or printed thereon shall have the same force
and effect, for all purposes, as if such corporate seal had been affixed thereto
by indentation.
STOCKHOLDERS' MEETINGS
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3. All meetings of stockholders shall be held at the principal office of
the Corporation or at such other place as shall be stated in the notice of the
meeting. Such meetings shall be presided over by the chief executive officer of
the Corporation, or, in his absence, by such other officer as shall have been
designated for the purpose by the Board of Directors, except when by statute the
election of a presiding officer is required.
4. Annual meetings of stockholders shall be held during the month of May
in each year on such day and at such time as shall be determined by the Board of
Directors and specified in the notice of the meeting. At the annual meeting,
the stockholders entitled to vote shall elect by ballot a Board of Directors and
transact such other business as may properly be brought before the meeting.
Prior to any meeting of stockholders at which an election of directors is to be
held, the Board of Directors shall appoint one judge of election to serve at
such meeting. If there be a failure to appoint a judge or if such judge be
absent or refuse to act or if his office becomes vacant, the stockholders
present at the meeting, by a per capita vote, shall choose temporary judges of
the number required. No director or officer of the Corporation shall be
eligible to appointment or election as a judge.
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5. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the shares of stock of the
Corporation issued and outstanding and entitled to vote, present in person or by
proxy, shall be requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such shares of
stock shall not be present or represented by proxy at any such meeting, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power, by vote of the holders of a majority of the shares of capital stock
present or represented at the meeting, to adjourn the meeting from time to time
without notice other than announcement at the meeting, until the holders of the
amount of stock requisite to constitute a quorum, as aforesaid, shall be present
in person or by proxy. At any adjourned meeting at which such quorum shall be
present, in person or by proxy, any business may be transacted which might have
been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record of shares of
capital stock then entitled to vote shall be entitled to vote in person, or by
proxy appointed by instrument executed in writing by such stockholders or by his
duly authorized attorney; but no proxy shall be valid after the expiration of
eleven months from the date of its execution unless the stockholder executing it
shall have specified therein the length of time it is to continue in force,
which shall be for some specified period. At all elections of directors each
holder of record of shares of capital stock then entitled to vote, shall be
entitled to as many votes as shall equal the number of votes which (except for
such provision) he would be entitled to cast for the election of directors with
respect to his shares of stock multiplied by the number of directors to be
elected and he may cast all such votes for a single director or may distribute
them among the number to be voted for, or any two or more of them, as he may see
fit. Except as otherwise provided by law or by the Certificate of
Incorporation, each holder of record of shares of capital stock entitled to vote
at any meeting of stockholders shall be entitled to one vote for every share of
capital stock standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or to a
corporation controlled by the Corporation through stock ownership or through
majority representation on the board of directors thereof, shall not be voted.
All elections shall be determined by a plurality vote, and, except as otherwise
provided by law or by the Certificate of Incorporation all other matters shall
be determined by a vote of the holders of a majority of the shares of the
capital stock present or represented at a meeting and voting on such questions.
7. A complete list of the stockholders entitled to vote at any meeting
of stockholders, arranged in alphabetical order, with
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the residence of each, and the number of shares held by each, shall be prepared
by the Secretary and filed in the principal office of the Corporation at least
fifteen days before the meeting, and shall be open to the examination of any
stockholder at all times prior to such meeting, during the usual hours for
business, and shall be available at the time and place of such meeting and open
to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by law, may be called by the Chairman or by the
President, and shall be called by the chief executive officer or Secretary at
the request in writing of any three members of the Board of Directors, or at the
request in writing of holders of record of ten percent of the shares of capital
stock of the Corporation issued and outstanding. Business transacted at all
special meetings of the stockholders shall be confined to the purposes stated in
the call.
9. (a) Notice of every meeting of stockholders, setting forth the time
and the place and briefly the purpose or purposes thereof, shall be mailed, not
less than ten nor more than fifty days prior to such meeting, to each
stockholder of record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the Corporation 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) as
of a date fixed by the Board of Directors pursuant to Section 41 of the By-Laws.
Except as otherwise provided by law, the Certificate of Incorporation or the By-
Laws, items of business, in addition to those specified in the notice of
meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of stockholders at a
meeting thereof is required or permitted to be taken in connection with any
corporate action, the meeting and vote of stockholders may be dispensed with, if
all the stockholders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such corporate action being
taken, and all such consents shall be filed with the Secretary of the
Corporation. However, this section shall not be construed to alter or modify
any provision of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding shares is sufficient
for corporate action
DIRECTORS
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10. The business and affairs of the Corporation shall be managed by its
Board of Directors, which shall consist of not less than one nor more than nine
directors as shall be fixed from time to time by a resolution adopted by a
majority of the entire Board of Directors; provided, however, that no decrease
in the number of
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directors constituting the entire Board of Directors shall shorten the term of
any incumbent director. Each director shall be at least twenty-one years of
age. Directors need not be stockholders of the Corporation. Directors shall be
elected at the annual meeting of stockholders, or, if any such election shall
not be held, at a stockholders' meeting called and held in accordance with the
provisions of the General Corporation Law of the State of Delaware. Each
director shall serve until the next annual meeting of stockholders and
thereafter until his successor shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-Laws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of fraud no contract
or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for such reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors which
authorize the contract or transaction, or solely because his votes are counted
for such purpose if:
(a) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Board of Directors, and
the Board in good faith authorizes the contract or transaction by a
vote sufficient for such purposes without counting the vote of the
interested director or directors; or
(b) The material facts as to his interest and as to the contract or
transaction are disclosed or known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of
Directors or the stockholders.
No director or officer shall be liable to account to the Corporation for
any profit realized by him from or through any such contract or transaction of
the Corporation by reason of his
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interest as aforesaid in such contract or transaction if such contract or
transaction shall be authorized, approved or ratified as aforesaid.
No contract or other transaction between the Corporation and any of its
affiliates shall in any case be void or voidable or otherwise affected because
of the fact that directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or officer, because of
such relation, be deemed interested in such contract or other transaction under
any of the provisions of this Section 12, nor shall any such director be liable
to account because of such relation. For the purposes of this Section 12, the
term "affiliate" shall mean any corporation which is an "affiliate" of the
Corporation within the meaning of the Public Utility Holding Company Act of
1935, as said Act shall at the time be in effect.
Nothing herein shall create liability in any of the events described in
this Section 12 or prevent the authorization, ratification or approval, in any
other manner provided by law, of any contract or transaction described in this
Section 12.
Meetings of the Board of Directors
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13. The first meeting of the Board of Directors, for the purpose of
organization, the election of officers, and the transaction of any other
business which may come before the meeting, shall be held on call of the
Chairman within one week after the annual meeting of stockholders. If the
Chairman shall fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the manner prescribed
for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be held without notice
except for the purpose of taking action on matters as to which notice is in the
By-Laws required to be given, at such time and place as shall from time to time
be designated by the Board, but in any event at intervals of not more than three
months. Special meetings of the Board of Directors may be called by the
Chairman or by the President or in the absence or disability of the Chairman and
the President, by a Vice President, or by any two directors, and may be held at
the time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item or business may
be transacted at any meeting of the Board of Directors, whether or not such item
of business shall have been specified in the notice of meeting. Where notice of
any meeting of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give notice
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either personally or by telephone or telegraph at least twenty-four hours before
the meeting, or by mail at least three days before the meeting. Meetings may be
held at any time and place without notice if all the directors are present or if
those not present waive notice in writing either before or after the meeting.
16. At all meetings of the Board of Directors a majority of the directors
in office shall be requisite for, and shall constitute, a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or by the
Articles of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to any time or place
by a majority of the directors present at the meeting, whether or not a quorum
shall be present at such meeting, and no notice of the adjourned meeting shall
be required other than announcement at the meeting.
COMMITTEES
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18. The Board of Directors may, by the vote of a majority of the
directors in office, create an Executive Committee, consisting of two or more
members, of whom one shall be the chief executive officer of the Corporation.
The other members of the Executive Committee shall be designated by the Board of
Directors from their number, shall hold office for such period as the Board of
Directors shall determine and may be removed at any time by the Board of
Directors. When a member of the Executive Committee ceases to be a director,
he shall cease to be a member of the Executive Committee. The Executive
Committee shall have all the powers specifically granted to it by the By-Laws
and, between meetings of the Board of Directors, may also exercise all the
powers of the Board of Directors except such powers as the Board of Directors
may exercise by virtue of Section 11 of the By-Laws. The Executive Committee
shall have no power to revoke any action taken by the Board of Directors, and
shall be subject to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
19. The Executive Committee shall cause to be kept regular minutes of its
proceedings, which may be transcribed in the regular minute book of the
Corporation, and all such proceedings shall be reported to the Board of
Directors at its next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board of Directors,
provided that no rights which, in the absence of such revision of alteration,
third persons would have had shall be affected by such revision or alteration.
A majority of the Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a
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majority of the total number of directors provided for in Section 10 of the By-
Laws fill any vacancies in the Executive Committee. The Executive Committee
shall designate one of its number as Chairman of the Executive Committee and
may, from time to time, prescribe rules and regulations for the calling and
conduct of meetings of the Committee, and other matters relating to its
procedure and the exercise of its powers.
20. From time to time the Board of Directors may appoint any other
committee or committees for any purpose or purposes, which committee or
committees shall have such powers and such tenure of office as shall be
specified in the resolution of appointment. The chief executive officer of the
Corporation shall be a member ex officio of all committees of the Board.
COMPENSATION AND REIMBURSEMENT OF DIRECTORS
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AND MEMBERS OF THE EXECUTIVE COMMITTEE
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21. Directors, other than salaried officers of the Corporation or its
affiliates, shall receive compensation and benefits for their services as
directors, at such rate or under such conditions as shall be fixed from time to
time by the Board, and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special meeting of the Board
of Directors.
22. Directors, other than salaried officers of the Corporation or its
affiliates, who are members of any committee of the Board, shall receive
compensation for their services as such members as shall be fixed from time to
time by the Board, and shall be reimbursed for their reasonable expenses, if
any, in attending meetings of the Executive Committee or such other Committees
of the Board and of otherwise performing their duties as members of such
Committees.
OFFICERS
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23. The officers of the Corporation shall be chosen by a vote of a
majority of the directors in office and shall be a President, one or more Vice
Presidents, a Treasurer, a Secretary, and a Comptroller, and may include a
Chairman, one or more Assistant Secretaries, one or more Assistant Treasurers,
and one or more Assistant Comptrollers. If a Chairman shall be chosen, the
Board of Directors shall designate either the Chairman or the President as chief
executive officer of the Corporation. If a Chairman shall not be chosen, the
President shall be the chief executive officer of the Corporation. The Chairman
and a President who is designated chief executive officer of the corporation
shall be chosen from among the directors. A President who is not chief
executive officer of the Corporation and none of the other officers
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need be a director. Neither the Comptroller nor any Assistant Comptroller may
occupy any other office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity.
24. The salary and other compensation of the chief executive officer of
the Corporation shall be determined from time to time by the Board of Directors.
The salaries and other compensation of all other officers of the Corporation
shall be determined from time to time by the chief executive officer, subject to
the concurrence of the Chairman.
25. The salary or other compensation of all employees other than officers
of the Corporation shall be fixed by the chief executive officer of the
Corporation or by such other officer as shall be designated for that purpose by
the Board of Directors.
26. The Board of Directors may appoint such officers and such
representatives or agents as shall be deemed necessary, who shall hold office
for such terms, exercise such powers, and perform such duties as shall be
determined from time to time by the Board of Directors.
27. The officers of the Corporation shall hold office until the first
meeting of the Board of Directors after the next succeeding annual meeting of
stockholders and until their respective successors are chosen and qualify. Any
officer elected pursuant to Section 23 of the By-Laws may be removed at any
time, with or without cause, by the vote of a majority of the directors in
office. Any other officer and any representative, employee or agent of the
Corporation may be removed at any time, with or without cause, by action of the
Board of Directors, by the Executive Committee, or the chief executive officer
of the Corporation, or such other officer as shall have been designated for that
purpose by the chief executive officer of the Corporation.
THE CHAIRMAN
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28. (a) If a Chairman shall be chosen by the Board of Directors, he
shall preside at all meetings of the Board at which he shall be present.
(b) If a Chairman shall be chosen by the Board of Directors and if he
shall be designated by the Board as chief executive officer of the Corporation:
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(i) he shall have supervision, direction and control of the
conduct of the business of the Corporation, subject, however, to
the control of the Board of Directors and the Executive
Committee, if there be one;
(ii) he may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments pertaining
to matters which arise in the ordinary course of business of the
Corporation, and, when authorized by the Board of Directors or
the Executive Committee, if there be one, may sign in the name
and on behalf of the Corporation any and all contracts,
agreements or other instruments of any nature pertaining to the
business of the Corporations;
(iii) he may, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in person
or by substitute or proxy appointed by him and act and vote on
behalf of the Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock and grant any
consent, waiver, or power of attorney in respect of such stock;
(iv) he shall, whenever it may in his opinion be necessary or
appropriate, prescribe the duties of officers and employees of
the Corporation whose duties are not otherwise defined; and
(v) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-
Laws, or by the Board of Directors.
(c) If a Chairman shall be chosen by the Board of Directors and if he
shall not be designated by the Board as chief executive officer of the
Corporation.
(i) he may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments pertaining
to matters which arise in the ordinary course of business of the
Corporation and, when authorized by the Board of Directors or the
Executive Committee, if there be one, may sign in the name and on
behalf of the Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the business of the
Corporation;
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(ii) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-
Laws, or by the Board of Directors.
THE PRESIDENT
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29. (a) If a Chairman shall not be chosen by the Board of Directors, the
President shall preside at all meetings of the Board at which he shall be
present.
(b) If the President shall be designated by the Board of Directors as
chief executive officer of the Corporation.
(i) he shall have supervision, direction and control of the
conduct of the business of the Corporation, subject, however, to
the control of the Board of Directors and the Executive Committee
if there be one;
(ii) he may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments pertaining
to matters which arise in the ordinary course of business of the
Corporation, and, when authorized by the Board of Directors or
the Executive Committee, if there be one, may sign in the name
and on behalf of the Corporation any and all contracts,
agreements, or other instruments of any nature pertaining to the
business of the Corporation;
(iii) he may, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in person
or by substitute or proxy appointed by him and act and vote on
behalf of the Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds stock and grant
any consent, waiver, or power of attorney in respect of such
stock;
(iv) he shall, whenever it may in his opinion be necessary or
appropriate, prescribe the duties of officers and employees of
the Corporation whose duties are not otherwise defined; and
(v) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-
Laws, or by the Board of Directors.
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(c) If the Chairman shall be designated by the Board of Directors as
chief executive officer of the Corporation, the President,
(i) shall be the chief operating officer of the Corporation;
(ii) shall have supervision, direction and control of the
conduct of the business of the Corporation, in the absence or
disability of the Chairman, subject, however, to the control of
the Board of Directors and the Executive Committee, if there be
one;
(iii) may sign in the name and on behalf of the Corporation any
and all contracts, agreements or other instruments pertaining to
matters which arise in the ordinary course of business of the
Corporation, and, when authorized by the Board of Directors or
the Executive Committee, if there be one, may sign in the name
and on behalf of the Corporation any and all contracts,
agreements or other instruments of any nature pertaining to the
business of the Corporation;
(iv) at the request or in the absence or disability of the
Chairman, may, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in person
or by substitute or proxy appointed by him and act and vote on
behalf of the Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds stock and grant
any consent, waiver or power of attorney in respect of such
stock;
(v) at the request or in the absence or disability of the
Chairman, whenever in his opinion it may be necessary or
appropriate, shall prescribe the duties of officers and employees
of the Corporation whose duties are not otherwise defined; and
(vi) shall have such other powers and perform such other duties
as may be prescribed from time to time by law, by the By-Laws, or
by the Board of Directors.
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VICE PRESIDENT
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30. (a) The Vice President shall, in the absence or disability of the
President, if the President has been designated chief executive officer of the
Corporation or if the President is acting pursuant to the provisions of
Subsection 29(c)(ii) of the By-Laws, have supervision, direction and control of
the conduct of the business of the Corporation, subject, however, to the control
of the Directors and the Executive Committee, if there be one.
(b) He may sign in the name of and on behalf of the Corporation any
and all contracts, agreements or other instruments pertaining to matters which
arise in the ordinary course of business of the Corporation, and when authorized
by the Board of Directors or the Executive Committee, if there be one, except in
cases where the signing thereof shall be expressly delegated by the Board of
Directors or the Executive Committee to some other officer or agent of the
Corporation.
(c) He may, if the President has been designated chief executive
officer of the Corporation or if the President is acting pursuant to the
provisions of Subsection 29(c)(ii) of the By-Laws, at the request or in the
absence or disability of the President or in case of the failure of the
President to appoint a substitute or proxy as provided in Subsections 29(b)(iii)
and 29(c)(iv) of the By-Laws, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in person or by
substitute or proxy appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of any corporation in which the
Corporation holds stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform such other duties as
may be prescribed from time to time by law, by the By-Laws, or by the Board of
Directors.
(e) If there be more than one Vice President, the Board of Directors
may designate one or more of such Vice Presidents as an Executive Vice President
or a Senior Vice President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has been designated
chief executive officer of the Corporation or if the President is acting
pursuant to the provisions of Subsection 29(c)(ii) of the By-Laws, designate the
order in which the respective Vice Presidents shall have supervision, direction
and control of the business of the Corporation in the absence or disability of
the President.
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THE SECRETARY
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31. (a) The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in books to be kept for that purpose; and he shall
perform like duties for the Executive Committee and any other committees created
by the Board of Directors.
(b) He shall give, or cause to be given, notice of all meetings of
the stockholders, the Board of Directors, or the Executive Committee of which
notice is required to be given by law or by the By-Laws.
(c) He shall have such other powers and perform such other duties as
may be prescribed from time to time by law, by the By-Laws, or the Board of
Directors.
(d) Any records kept by the Secretary shall be the property of the
Corporation and shall be restored to the Corporation in case of his death,
resignation, retirement or removal from office.
(e) He shall be the custodian of the seal of the Corporation and,
pursuant to Section 45 of the By-Laws and in other instances where the execution
of documents on behalf of the Corporation is authorized by the By-Laws or by the
Board of Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger, stock certificate book
and all books containing minutes of any meeting of the stockholders, Board of
Directors, or Executive Committee or other committee created by the Board of
Directors, and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretaries shall assist the
Secretary in the performance of his duties, shall exercise his powers and duties
at his request or in his absence or disability, and shall exercise such other
powers and duties as may be prescribed by the Board of Directors.
THE TREASURER
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32. (a) The Treasurer shall be responsible for the safekeeping of the
corporate funds and securities of the Corporation, and shall maintain and keep
in his custody full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other funds of
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the Corporation in the name and to the credit of the Corporation, in such
depositories as may be designated by the Board of Directors.
(b) He shall disburse the funds of the Corporation in such manner as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may, when authorized by
the Board of Directors, affix the seal to all instruments requiring it and shall
attest the ensealing and execution of said instruments.
(d) He shall exhibit at all reasonable times his accounts and records
to any director of the Corporation upon application during business hours at the
office of the Corporation where such accounts and records are kept.
(e) He shall render an account of all his transactions as Treasurer at
all regular meetings of the Board of Directors, or whenever the Board may
require it, and at such other times as may be requested by the Board or by any
director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the office of
Treasurer, and shall have other powers and duties as from time to time may be
prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall assist the
Treasurer in the performance of his duties, shall exercise his powers and duties
at his request or in his absence or disability, and shall exercise such other
powers and duties as may be prescribed by the Board of Directors. If required
by the Board of Directors, any Assistant Treasurer shall give the Corporation a
bond, the premium on which shall be paid by the Corporation, similar to that
which may be required to be given by the Treasurer.
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COMPTROLLER
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33. (a) The Comptroller of the Corporation shall be the principal
accounting officer of the Corporation and shall be accountable and report
directly to the Board of Directors. If required by the Board of Directors, the
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation in such form and amount and with such surety or sureties
as shall be satisfactory to the Board, for the faithful performance of the
duties of his office.
(b) He shall keep or cause to be kept full and complete books of
account of all operations of the Corporation and of its assets and liabilities.
(c) He shall have custody of all accounting records of the Corporation
other than the record of receipts and disbursements and those relating to the
deposit or custody of money or securities of the Corporation, which shall be in
the custody of the Treasurer.
(d) He shall exhibit at all reasonable times his books of account and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such books of account and records
are kept.
(e) He shall render reports of the operations and business and of the
condition of the finances of the Corporation at regular meetings of the Board of
Directors, and at such other times as he may be requested by the Board or any
director of the Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an original copy of each
written contract made by or on behalf of the Corporation.
(g) He shall receive periodic reports from the Treasurer of the
Corporation of all receipts and disbursements, and shall see that correct
vouchers are taken for all disbursements for any purpose.
(h) He shall perform all duties generally incident to the office of
Comptroller, and shall have such other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant Comptrollers shall assist
the Comptroller in the performance of his duties, shall exercise his powers and
duties at his request or in his absence or disability and shall exercise such
other powers and duties as may be conferred or required by the Board of
Directors.
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If required by the Board of Directors, any Assistant Comptroller shall give the
Corporation a bond, the premium on which shall be paid by the Corporation,
similar to that which may be required to be given by the Comptroller.
VACANCIES
---------
34. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have specified the filling of such vacancy as one of its
purposes may choose a successor, who shall hold office for the unexpired term in
respect of which such vacancy occurs. If the office of any officer of the
Corporation shall become vacant for any reason, the Board of Directors, at a
meeting, the notice of which shall have specified the filling of such vacancy as
one of its purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Pending action by the
Board of Directors at such meeting, the Board of Directors or the Executive
Committee may choose a successor temporarily to serve as an officer of the
Corporation.
RESIGNATIONS
------------
35. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect from the time of its acceptance, unless some
time be fixed in the resignation, and then from that time. Nothing herein shall
be deemed to relieve any officer from liability for breach of any contract of
employment resulting from any such resignation.
DUTIES OF OFFICERS MAY BE DELEGATED
-----------------------------------
36. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 10 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
----------------------------------------------------
37. (a) A director shall not be personally liable for monetary damages
as such for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his office under the
General Corporation Law of the State of Delaware, and the breach or failure to
perform
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constitutes self-dealing, willful misconduct or recklessness. The provisions of
this subsection (a) shall not apply to the responsibility or liability of a
director pursuant to any criminal statute, or the liability of a director for
the payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may indemnify any person
who was an agent of the Corporation), or a person serving at the request of the
Corporation as a director, officer, partner, fiduciary or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including without limitation
indemnification against expenses (including attorneys' fees and disbursements),
damages, punitive damages, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding unless the act or failure to act giving rise to the claim for
indemnification is finally determined by a court to have constituted willful
misconduct or recklessness.
(c) The Corporation shall pay the expenses (including attorneys' fees
and disbursements) actually and reasonably incurred in defending a civil or
criminal action, suit or proceeding on behalf of any person entitled to
indemnification under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation, and may pay such expenses in advance on
behalf of any agent on receipt of a similar undertaking. The financial ability
of such person to make such repayment shall not be a prerequisite to the making
of an advance.
(d) For purposes of this Section: (i) the Corporation shall be deemed
to have requested an officer, director, employee or agent to serve as fiduciary
with respect to an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise involves services
by, such person of duties to the Corporation also imposes duties on, or
otherwise involves services by, such person as a fiduciary with respect to the
plan; (ii) excise taxes assessed with respect to any transaction with an
employee benefit plan shall be deemed "fines"; and (iii) action taken or omitted
by such person with respect to any employee benefit plan in the performance of
duties for a purpose reasonably believed to be in the interest of the
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participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Corporation.
(e) To further effect, satisfy or secure the indemnification
obligations provided herein or otherwise, the Corporation may maintain
insurance, obtain a letter of credit, act as self-insurer, create a reserve,
trust, escrow, cash collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or arrangement
whatsoever in such amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate.
(f) All rights of indemnification under this Section shall be deemed a
contract between the Corporation and the person entitled to indemnification
under this Section pursuant to which the Corporation and each such person intend
to be legally bound. Any repeal, amendment or modification hereof shall be
prospective only and shall not limit, but may expand, any rights or obligations
in respect of any proceeding whether commenced prior to or after such change to
the extent such proceeding pertains to actions or failures to act occurring
prior to such change.
(g) The indemnification, as authorized by this Section, shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to action in an
official capacity and as to action in any other capacity while holding such
office. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters arising prior to such
time, and shall inure to the benefit of the heirs, executors and administrators
of such person.
STOCK OF OTHER CORPORATIONS
---------------------------
38. The Board of Directors may authorize any director, officer or other
person on behalf of the Corporation to attend, act and vote at meetings of the
stockholders of any corporation in which the Corporation shall hold stock, and
to exercise thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such meetings and
calls therefor.
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CERTIFICATE OF STOCK
--------------------
39. The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and may include his address. No
fractional shares of stock shall be issued. Certificates of stock shall be
signed by the Chairman, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, and shall be
sealed with the seal of the Corporation. Where any certificate of stock is
signed by a transfer agent or transfer clerk, who may be but need not be an
officer or employee of the Corporation, and by a registrar, the signature of any
such Chairman, President, Vice President, Secretary, Assistant Secretary,
Treasurer, or Assistant Treasurer upon such certificate who shall have ceased to
be such before such certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not ceased to be such at
the date of its issue.
TRANSFER OF STOCK
-----------------
40. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by attorney, lawfully constituted in
writing, and upon surrender of the certificate therefor.
FIXING OF RECORD DATE
---------------------
41. The Board of Directors is hereby authorized to fix a time, not
exceeding fifty (50) days preceding the date of any meeting of stockholders or
the date fixed for the payment of any dividend or the making of any
distribution, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of capital stock, as
a record time for the determination of the stockholders entitled to notice of
and to vote at such meeting or entitled to receive any such dividend,
distribution, rights or interests as the case may be; and all persons who are
holders of record of capital stock at the time so fixed and no others, shall be
entitled to notice of and to vote at such meeting, and only stockholders of
record at such time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
REGISTERED STOCKHOLDERS
-----------------------
42. The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part
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of any other person, whether or not it shall have express or other notice
thereof, save as expressly provided by statutes of the State of Delaware.
LOST CERTIFICATES
-----------------
43. Any person claiming a certificate of stock to be lost or destroyed
shall make an affidavit or affirmation of that fact, whereupon a new certificate
may be issued of the same tenor and for the same number of shares as the one
alleged to be lost or destroyed; provided, however, that the Board of Directors
may require, as a condition to the issuance of a new certificate, the payment of
the reasonable expenses of such issuance or the furnishing of a bond of
indemnity in such form and amount and with such surety or sureties, or without
surety, as the Board of Directors shall determine, or both the payment of such
expenses and the furnishing of such bond, and may also require the advertisement
of such loss in such manner as the Board of Directors may prescribe.
INSPECTION OF BOOKS
-------------------
44. The Board of Directors may determine whether and to what extent, and
at what time the places and under what conditions and regulations, the accounts
and books of the Corporation (other than the books required by statute to be
open to the inspection of stockholders), or any of them, shall be open to the
inspection of stockholders, and no stockholder shall have any right to inspect
any account or book or document of the Corporation, except as such right may be
conferred by statutes of the state of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
------------------------------------------
45. (a) All checks or demands for money and notes of the Corporation
shall be signed by such person or persons (who may but need not be an officer of
officers of the Corporation) as the Board of Directors may from time to time
designate, either directly or through such officers of the Corporation as shall,
by resolution of the Board of Directors, be authorized to designate such person
or persons. If authorized by the Board of Directors, the signatures of such
persons, or any of them, upon any checks for the payment of money may be made by
engraving, lithographing or printing thereon a facsimile of such signatures, in
lieu of actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and effect as if such
persons had actually signed the same.
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(b) All bonds, mortgages and other instruments requiring a seal, when
required in connection with matters which arise in the ordinary course of
business or when authorized by the Board of Directors, shall be executed on
behalf of the Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer, who shall,
when required, attest the ensealing and execution of said instrument. If
authorized by the Board of Directors, a facsimile of the seal may be employed
and such facsimile of the seal may be engraved, lithographed or printed and
shall have the same force and effect as an impressed seal. If authorized by the
Board of Directors, the signatures of the Chairman or the President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed bonds,
debentures, notes or other instruments may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of actual
signatures, and such facsimile signatures so engraved, lithographed or printed
thereon shall have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose facsimile
signature appears on, any such bonds, debentures, notes or other instruments
shall cease to be such officer before such bonds, debentures, notes or other
instruments shall have been delivered by the Corporation, such bonds,
debentures, notes or other instruments may nevertheless be adopted by the
Corporation and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not ceased to be such
officer of the Corporation.
RECEIPTS FOR SECURITIES
-----------------------
46. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
FISCAL YEAR
-----------
47. The fiscal year shall begin the first day of January in each year.
DIVIDENDS
---------
48. (a) Dividends in the form of cash or securities, upon the capital
stock of the Corporation, to the extent permitted by law may be declared by the
Board of Directors at any regular or special meeting.
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(b) The Board of Directors shall have power to fix and determine, and
from time to time to vary, the amount to be reserved as working capital; to
determine whether any, and if any, what part of any, surplus of the Corporation
shall be declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before payment of any
dividend or the making of any distribution to set aside out of the surplus of
the Corporation such amount or amounts as the Board of Directors from time to
time, in its absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
DIRECTORS' ANNUAL STATEMENT
---------------------------
49. The Board of Directors shall present or cause to be presented at each
annual meeting of stockholders, and when called for by vote of the stockholders
at any special meeting of the stockholders, a full and clear statement of the
business and condition of the Corporation.
NOTICES
-------
50. (a) Whenever under the provisions of the By-Laws notice is
required to be given to any director, officer of stockholder, it shall not be
construed to require personal notice, but, except as otherwise specifically
provided, such notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained by the United
States Postal Service, postage prepaid, addressed to such stockholder, officer
or director, at his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer xxx xxxxx in writing any notice
required to be given to him by law or by the By-Laws.
PARTICIPATION IN MEETINGS BY TELEPHONE
--------------------------------------
51. At any meeting of the Board of Directors or the Executive
Committee or any other committee designated by the Board of Directors, one or
more directors may participate in such meeting in lieu of attendance in person
by means of the conference telephone or similar communications equipment by
means of which all persons participating in the meeting will be able to hear and
speak.
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OATH OF JUDGES OF ELECTION
--------------------------
52. The judges of election appointed to act at any meeting of the
stockholders shall, before entering upon the discharge of their duties, be sworn
faithfully to execute the duties of judge at such meeting with strict
impartiality and according to the best of their ability.
AMENDMENTS
----------
53. The By-Laws may be altered or amended by the affirmative vote of
the holders of a majority of the capital stock represented and entitled to vote
at a meeting of the stockholders duly held, provided that the notice of such
meeting shall have included notice of such proposed amendment. The By-Laws may
also be altered or amended by the affirmative vote of a majority of the
directors in office at a meeting of the Board of Directors, the notice of which
shall have included notice of the proposed amendment. In the event of the
adoption, amendment, or repeal of any By-Law by the Board of Directors pursuant
to this Section, there shall be set forth in the notice of the next meeting of
stockholders for the election of directors the By-Law so adopted, amended, or
repealed together with a concise statement of the changes made. By the
affirmative vote of the holders of a majority of the capital stock represented
and entitled to vote at such meeting, the By-Laws may, without further notice,
be altered or amended by amending or repealing such action by the Board of
Directors.
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