EXHIBIT 3(b)
AMENDED AND RESTATED BY-LAWS
of
AQUARION COMPANY
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ARTICLE I
OFFICES
Section 1.01. The registered office of the Corporation shall be
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in the city of Dover, County of Kent, State of Delaware.
Section 1.02. The Corporation may also have offices at such
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other places both within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of
the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. All meetings of the stockholders for the election
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of directors shall be held in the City of Bridgeport, State of
Connecticut, at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without
the State of Delaware as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. Meetings
of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2.02. Commencing with the year 1974, annual meetings of
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stockholders entitled to vote at such meetings pursuant to the
provisions of the Certificate of Incorporation shall be held on the
fourth Tuesday of April of each year, if not a legal holiday, and if a
legal holiday, then on the next succeeding day not a legal holiday, at
9:30 A.M., or at such other date and time as shall be designated from
time to time by the Board of Directors and stated in the notice of the
meeting.
Section 2.03. Written notice of the annual meeting stating the
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place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than
sixty (60) days before the date of the meeting.
Section 2.04. The Secretary shall prepare and make, at least ten
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(10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder
and the number of shares of any class of stock the holders of which are
entitled to vote at such meeting, registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder
entitled to vote at such meeting, 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 within the city in which the meeting
is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
inspected by any stockholder entitled to vote at such meeting, who is
present.
Section 2.05. Special meetings of stockholders of the
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Corporation may be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented
to the Board for adoption).
Section 2.06. Written notice of a special meeting stating the
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place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 2.07. Business transacted at any special meeting of
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stockholder shall be limited to the purposes stated in the notice of
meeting.
Section 2.08. The holders of a majority of the stock issued and
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outstanding of any class which is entitled to vote at a meeting of
stockholders, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the
transaction of business in respect of any vote required to be taken by
such class except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the
stockholders of such class present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum of such
class shall be present or represented. At such meeting at which a
quorum of such class shall be present or represented any business may
be transacted which might have been transacted at the meeting as
originally notified. 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, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.09. When a quorum of any class of stock is present at
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any meeting, the vote of the holders of a majority of the stock of
such class present in person or represented by proxy, shall decide any
question in respect of any vote required to be taken by such class
brought before such meeting, unless the question is one upon which by
express provision of the General Corporation Law of the State of
Delaware or of the Certificate of Incorporation a different vote
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is required, in which case such express provision shall govern and
control the decision of such question.
Section 2.10. Except as otherwise provided in the Certificate of
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Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each
share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its
date, unless the proxy expressly provides for a longer period. 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 order that such vote be taken by ballot. If a
vote is to be taken by ballot, each ballot shall state the number of
shares voted of each class entitled to vote and the name of the
stockholder or proxy voting.
Section 2.11. Any action required or permitted to be taken by
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the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing by such stockholders.
PRESIDING OFFICER/ORDER OF BUSINESS
Section 2.12. Meetings of stockholders shall be presided over by
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the President of the Corporation or, if he is not present, then by the
Chairman of Board, or, if he is not present, by a Vice President, or
if neither the Chairman of the Board nor the President nor a Vice
President is present, by a chairman to be chosen by a majority of the
stockholders entitled to vote at the meeting who are present in person
or by proxy. The Secretary of the Corporation, or, in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the
meeting shall choose any person present to. act as secretary of the
meeting.
Section 2.13. The Board of Directors of the Corporation may
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adopt such procedural rules for the conduct of meetings of
stockholders as the Board of Directors, in its sole discretion, shall
deem to be in the best interests of the stockholders and to ensure
that all meetings of stockholders are conducted in a fair and
reasonable manner.
ARTICLE III
DIRECTORS
Section 3.01. The business of the Corporation shall be managed
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by or under the direction of its Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of
Incorporation or by these By-laws directed or required to be exercised
or done by the stockholders.
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Section 3.02. In addition to any rights or duties prescribed by
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statute, any director shall perform his duties as such in good faith,
in a manner he reasonably believes to be in the best interests of the
Corporation, and with such care as a ordinarily prudent person in a
like position would use under similar circumstances. In performing
his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by:
(a) one or more officers or employees of the Corporation whom
the director reasonably believes to be reliable and competent in the
matters presented,
(b) counsel, public accountants, or other persons as to matters
which the director reasonably believes to be within such person's
professional or expert competence, or
(c) a committee of the board upon which he does not serve, duly
designated in accordance with a provision of the Certificate of
Incorporation or these By-laws, as to matters within its designated
authority, which committee the director reasonably believes to merit
confidence, but he shall not be considered to be acting in good faith
if he has knowledge concerning the matter in question that would cause
such reliance to be unwarranted. A person who so performs his duties
shall have no liability by reason of being or having been a director
of the Corporation.
Section 3.03. A director of the Corporation who is present at a
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meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who
voted in favor of such action. Any director who may have been absent
from a meeting of the Board of Directors at which action on a
corporate matter is taken shall be presumed to have assented to the
action taken unless he shall file his written dissent to such action
with the person acting as Secretary of the Corporation immediately
after he has notice of the same.
Section 3.04. The Board of Directors shall consist of not less
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than nine or more than fifteen persons, the exact number to be fixed
from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented
to the Board for adoption). Each director shall be a stockholder of
the Corporation. At the 1985 annual meeting of stockholders, the
directors shall be divided into three classes, as nearly equal in
number as possible, with the term of office of the first class to
expire at the 1986 annual meeting of stockholders, the term of office
of the second class to expire at the 1987 annual meeting of
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stockholders and the term of office of the third class to expire at
the 1988 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election.
Section 3.05. Any director of the Corporation may resign at any
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time either by oral tender of resignation at any meeting of the Board
of Directors or by giving written notice thereof to the Corporation.
Such resignation shall take effect at the time specified therefor, and
unless otherwise specified with respect thereto the acceptance of such
resignation shall not be necessary to make it effective. Subject to
the rights of the holders of any class or series of Preferred Stock
having preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any
directors, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80 percent of the combined voting
power of all of the then-outstanding shares of stock of all classes
and series of the Corporation entitled to vote generally (the "Voting
Stock"), voting together as a single class (it being understood that,
for all purposes of these By-laws, each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article 4 of
the Restated Certificate of Incorporation of the Corporation or any
designation of the rights, powers and preferences of any class or
series of the Preferred Stock of the Corporation made pursuant to said
Article 4 (a "Preferred Stock Designation")). The Corporation must
notify the director of the grounds of his impending removal and the
director shall have an opportunity, at the expense of the Corporation,
to present his defense to the stockholders by a statement which
accompanies or precedes the Corporation's solicitation of proxies to
remove him. The term "Entire Board" as used in these By-laws means
the total number of directors which the Corporation would have if
there were no vacancies.
Section 3.06. Except as otherwise fixed pursuant to the
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provisions of Article 4 of the Restated Certificate of Incorporation
relating to the rights of the holders of any class or series of
Preferred Stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified
circumstances, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, even though
less than a quorum of the Board of Directors, acting at a regular or
special meeting. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full
term of the directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been
elected and qualified. No decrease in the authorized number of
directors constituting the entire Board of Directors shall shorten the
term of any incumbent director.
MEETINGS OF THE BOARD OF DIRECTORS
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Section 3.07. The Board of Directors of the Corporation may hold
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meetings, both regular and special, either within or without the State
of Delaware. Members of the Board of Directors, or any committee
designated by such Board, may participate in a meeting of such Board
or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 3.08. Regular meetings of the Board of Directors may be
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held without notice six (6) times each year in accordance with a
schedule to be adopted annually by the Board in advance of the first
such meeting. At least one regular meeting shall be scheduled in each
calendar quarter, and only one regular meeting shall be scheduled in
any month. Any regular meeting of the Board may be held on the fourth
Tuesday of the month or on such other days as the Board may designate
in advance of the meeting. Any business of the Corporation may be
transacted at any such regular meeting.
Section 3.09. Special meetings of the Board may be called by the
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Secretary on two (2) days written or oral notice to each director, as
provided in Article IV, on the request of the Chairman of the Board or
the President or on the written request of three (3) directors.
Section 3.10. A whole number of directors equal to at least one
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third of the total number of authorized directors of the Corporation
(whether or not there exist any vacancies in previously authorized
directorships at the time at which the existence of a quorum is to be
determined with respect to the transaction of any business by the
Board) shall constitute a quorum for the transaction of business, but
if at any meeting of the Board there shall be less than a quorum
present a majority of those present may adjourn the meeting from time
to time until a quorum shall have been obtained.
Section 3.11. Unless otherwise restricted by the Certificate of
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Incorporation or these By-laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
Board or committee.
Section 3.12. Subject to the rights of holders of any class or
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series of Preferred Stock having a preference over the Common Stock as
to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any stockholder entitled to
vote in the election of directors generally. However, any stockholder
entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not later
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than (i) with respect to an election to be held at an annual
meeting of stockholders, ninety days prior to the anniversary date of
the immediately preceding annual meeting, and (ii) with respect to an
election to be held at a special meeting of stockholders for the
election of directors, the close of business on the tenth day
following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name and
address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a director of the Corporation
if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
COMMITTEES OF DIRECTORS
Section 3.13. The Board of Directors may create one or more
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committees and appoint members of the Board to serve on them. Each
committee shall have one or more directors, who serve at the pleasure
of the Board. The creation of a committee and the appointment of
directors to it shall be approved by a majority of all the directors
in office when the action is taken. To the extent specified by the
Board of Directors, each committee may exercise the authority of the
Board, except that a committee may not (i) declare a dividend or
authorize the issuance of stock; (ii) recommend to stockholders
actions enumerated in Section 141(c)(1) of the General Corporation Law
of the State of Delaware; (iii) amend the Certificate of
Incorporation; (iv) adopt, amend or repeal these By-laws, (v) adopt an
agreement of merger or consolidation; or (vi) exercise any other
authority prohibited by law. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors
when required.
COMPENSATION
Section 3.14. Directors, and members of any committee of the
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Board of Directors, shall be entitled to such reasonable compensation
for their services as directors and members of any such committee as
shall be fixed from time to time by resolution of the Board of
Directors, and shall also be entitled to reimbursement for any
reasonable expenses incurred in attending such meetings. The
compensation of directors may be on such basis as is determined in the
resolution of the Board of Directors. Any director receiving
compensation under these provisions shall not be barred from serving
the Corporation in any other capacity and receiving reasonable
compensation for such other services.
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ARTICLE IV
NOTICES
Section 4.01. Whenever, under the provisions of the statutes or
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of the Certificate of Incorporation or of these By-laws, notice is
required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but notice may be given in writing,
by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram or cable.
Section 4.02. Whenever any notice is required to be given under
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the provisions of the statutes or of the Certificate of Incorporation
or of these By-laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to such notice. Attendance
of a person at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except when the stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully
called or convened.
ARTICLE V
OFFICERS
Section 5.01. The Board of Directors at its initial meeting, and
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thereafter at its first meeting after each meeting of stockholders at
which directors are elected, shall elect, by majority vote of the
directors present, a Chairman of the Board, a President, one or more
Vice Presidents (one or more of whom may be designated as Executive
Vice Presidents or Senior Vice Presidents), a Secretary, and
Treasurer, each of whom shall hold office until the first meeting of
the Board after the next annual meeting of the stockholders and until
his successor is elected and qualified or until his earlier
resignation or removal. At any time the Board of Directors may fill
any vacancy that may occur in any office by reason of death,
resignation, removal or otherwise. At any time the Board of Directors
may also elect a Vice Chairman of the Board, one or more additional
Vice Presidents (one or more of whom may be designated as Executive
Vice President or Senior Vice President), a Controller, one or more
Assistant Secretaries, Assistant Treasurers, Assistant Controllers,
and such other officers and agents as in its judgment the business of
the Corporation may require, who shall perform such duties as the
Board shall from time to time determine. No officer of the
Corporation need be a member of the Board of Directors except the
Chairman of the Board and the President. Two or more offices may be
held by the same person.
Section 5.02. Any officer of the Corporation may resign at any
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time by giving written notice thereof to the Board of Directors. Such
resignation shall take effect at the time specified
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therefor, and unless otherwise specified with respect thereto the acceptance
of such resignation shall not be necessary to make it effective. Any officer
of the Corporation may be removed with or without cause at a meeting
by a majority of the members of the Board of Directors or by written
consent of all such members.
Section 5.03. The compensation of all officers and agents of the
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Corporation shall be fixed by the Board of Directors except to the
extent such power shall be delegated by resolution of the Board to a
committee of directors or to the President.
THE CHAIRMAN OF THE BOARD
Section 5.04. The Chairman of the Board shall preside at all
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meetings of the Board of Directors at which he is present. He shall
perform such other duties as the Board may from time to time
prescribe.
When such office is constituted by election by the Board of
Directors, the Vice Chairman of the Board shall preside at all
meetings of the Board of Directors at which the Chairman of the Board
is not present. He shall perform such other duties as the Board may
from time to time prescribe.
THE PRESIDENT
Section 5.05. The President shall be the chief executive officer
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of the Corporation and, subject to the authority of the Board of
Directors, shall have general and active charge, control and
supervision of all its business and affairs. He shall preside at all
meetings of the stockholders at which he is present. He shall perform
such other duties as the Board of Directors may from time to time
prescribe.
EXECUTIVE VICE PRESIDENTS
Section 5.06. The Executive Vice Presidents, each of whom shall
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have such primary responsibilities as may from time to time be
established and defined by the Board of Directors, shall each have
general executive powers. Each Executive Vice President shall perform
such other duties and exercise such other powers as the Board of
Directors or the President may from time to time prescribe.
In the absence of or in the event of the disability of the
President, the senior Executive Vice President shall perform the
duties of the President.
THE VICE PRESIDENTS
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Section 5.07. The several Vice Presidents may be designated by
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such title or titles and in such order of seniority as the Board of
Directors may determine. They shall perform such duties and exercise
such powers as the Board of Directors or the President may from time
to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 5.08. The Secretary shall give, or cause to be given,
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notice of all meetings of the stockholders and special meetings of the
Board of Directors; attend all meetings of the Board of Directors and
all meetings of the stockholders and record the proceedings of all
such meetings in a book kept for that purpose; perform like duties for
the standing committees when required; 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; and perform
such other duties as may be prescribed from time to time by the Board
of Directors or the President, under whose supervision he shall be.
He shall have custody of the corporate seal of the Corporation and he,
or an Assistant Secretary, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such Assistant Secretary. The
Board of Directors may give general authority to any other officer to
affix the seal of the Corporation and to attest the affixing by his
signature.
Section 5.09. The Assistant Secretary, or if there be more than
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one, the Assistant Secretaries, shall perform such duties and exercise
such powers as the Board of Directors or the President or the
Secretary may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 5.10. The Treasurer shall have the custody of the
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corporate funds and securities and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. He
shall disburse the funds of the Corporation as may be ordered by the
Board of Directors and shall render to the President and to the Board,
whenever the President or the Board shall require, an account of all
his transactions as Treasurer.
Section 5.11. The Assistant Treasurer, or if there shall be more
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than one, the Assistant Treasurers, shall perform such duties and
exercise such powers as the Board of Directors or the President or the
Treasurer may from time to time prescribe.
THE CONTROLLER AND ASSISTANT CONTROLLER
Section 5.12. When such office is constituted by appointment by
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the Board of Directors, the Controller shall be the chief auditing and
accounting officer of the Corporation and shall have control of and be
responsible for all matters pertaining to the accounting policy of the
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Corporation. He shall continuously examine the affairs of the
Corporation. He shall maintain adequate and complete records of all
assets, liabilities and transactions of the Corporation, shall
supervise the arrangement and classification of such records, and
shall supervise the accounting and auditing practices of the
Corporation. He shall receive, audit and consolidate all operating
and financial statements of the Corporation and its various
departments and divisions. He shall have the power to make and sign
all reports required by law to be made, published or filed by the
Corporation, or on its behalf, with any public officer, or if there
shall be more than one, the Assistant Controller, shall perform such
duties and exercise such powers as the Board of Directors or the
President or the Controller may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 6.01. Every holder of shares of capital stock of the
Corporation shall be entitled to have a certificate in a form approved
by the Board of Directors, signed by the Chairman of the Board, the
President, an Executive Vice President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, certifying the number of such shares owned by him.
Section 6.02. Where any such certificate is signed either by a
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transfer agent or an assistant transfer agent, or by a transfer clerk
acting on behalf of the Corporation and by a registrar, the signature
of any such Chairman of the Board, President, Executive Vice
President, Vice President, Treasurer, Assistant Treasurer, Secretary
or Assistant Secretary may be facsimile. In case any such officer who
has signed, or whose facsimile signature has been used on, any
certificate shall cease to be such officer, whether because of
resignation, removal or otherwise, before such certificate has been
delivered by the Corporation, such certificate may nevertheless be
issued and delivered by the Corporation with the same effect as if
such officer had not ceased to be such at the date of such delivery.
LOST CERTIFICATES
Section 6.03. In case any certificate of stock shall be lost,
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stolen or destroyed, any officer or officers may authorize the
issuance 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 any officer or officers determines 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 and office or officers.
TRANSFER OF STOCK
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Section 6.04. Upon surrender to the Corporation or the transfer
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agent of the Corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority
to transfer, it shall be the duty of the proper officers of the
Corporation or of the transfer agent to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 6.05. In order that the Corporation may determine the
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stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof or to express consent to
corporate action in writing without a meeting, or 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 stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior
to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjournment
meeting.
REGISTERED STOCKHOLDERS
Section 6.06. The Corporation shall be entitled to recognize the
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exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 7.01. Dividends upon the capital stock of the
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Corporation, subject to the provisions of the Certificate of
Incorporation and the General Corporation Law of the State of
Delaware, may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the
Certificate of Incorporation and the General Corporation Law of the
State of Delaware.
Section 7.02. Before payment of any dividend, there may be set
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aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in
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their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for qualifying dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose
as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve
in the manner in which it was created.
FISCAL YEAR
Section 7.03. The fiscal year of the Corporation shall be the
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calendar year unless otherwise fixed by resolution of the Board of
Directors.
DEPOSITS
Section 7.04. The Board of Directors shall select banks, trust
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companies, or other depositories in which all funds of the Corporation
not otherwise employed shall, from time to time be deposited to the
credit of the Corporation.
VOTING SECURITIES HELD BY THE CORPORATION
Section 7.05. Unless otherwise ordered by the Board of
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Directors, the Chairman of the Board or the President shall have full
power and authority on behalf of the Corporation to attend and to act
and to vote at any meeting of security holders of other corporations
in which the Corporation may hold securities. At such meeting the
Chairman of the Board or the President shall possess any and all
rights and powers incident to the ownership of such securities which
the Corporation might have possessed and exercised if it had been
present. The Board of Directors may, from time to time confer like
powers upon any other person or persons.
SEAL
Section 7.06. The corporate seal shall have inscribed thereon
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the name of the Corporation, the year of its organization and the
words "Corporate Seal, Delaware". The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. The Corporation shall indemnify any person who was
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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 (other than an action by or
in the right of the Corporation) by reason of the fact that he is or
was a director or officer of the Corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
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actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 8.02. The Corporation shall indemnify any person who was
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or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact
that he is or was a director or officer of the Corporation, against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and
except that no indemnification shall be made in respect to any claim,
issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to
the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery of the State of Delaware or
such other court shall deem proper.
Section 8.03. The Corporation may indemnify any person who is
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or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise to the extent and under the circumstances provided by
paragraphs 1 and 2 of this Article VIII with respect to a person who
is or was a director or officer of the Corporation.
Section 8.04. Any indemnification under paragraphs 1, 2 and 3
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of this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard
of conduct set forth therein. Such determination shall be made (a) by
the Board of Directors by a majority vote of only those directors who
were not parties to such action, suit or proceeding, (b) if such
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders.
Section 8.05. Expenses incurred in defending a civil or criminal
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action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action,
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suit or proceeding as authorized by the Board of Directors of the
Corporation in the manner provided in the next preceding paragraph upon
receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 8.06. The indemnification provided by this Article VIII
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shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 8.07. By action of its Board of Directors,
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notwithstanding any interest of the directors in the action, the
Corporation may purchase and maintain insurance, in such amounts as
the Board of Directors deems appropriate, on behalf of any person who
is or was a director, officer, employee or agent of the Corporation,
or of any corporation a majority of the voting stock of which is owned
by the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the Corporation would have the power or would be required to indemnify
him against such liability under the provisions of this Article VIII
or of the General Corporation Law of the State of Delaware.
Section 8.08. For the purposes of this Article VIII, references
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to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have power and authority to
indemnity its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
ARTICLE IX
AMENDMENTS
Section 9.01. These By-laws may be amended, added to rescinded
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or repealed at any meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the
notice of the meeting or, in the case of a meeting of the Board of
Directors, in a notice given not less than two days prior to the
meeting; provided, however, that,
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notwithstanding any other provisions of these By-laws or any provision
of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class
or series of the Voting Stock required by law, the Restated Certificate
of Incorporation, any Preferred Stock Designation or these By-laws, the
affirmative vote of the holders of at least 80 percent of the combined
voting power of all the then-outstanding shares of the Voting Stock, voting
together as a single class, shall be required to alter, amend or repeal
Sections 2.05 and 2.11 of ARTICLE II of these By-laws, Sections 3.04, 3.05,
3.06, 3.10 and 3.12 of ARTICLE III of these By-laws or this proviso to
this Section 9.01 of ARTICLE IX of these By-laws.
ARTICLE X
REFERENCES
Reference in these By-Laws to a provision of the General
Corporation Law of the State of Delaware or any provision of Delaware
law set forth therein is to such provision of the Delaware Code 1953,
as amended, or the corresponding provision(s) of any subsequent
Delaware law.
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