Adopted: September 22, 1971
Amended: May 31, 1973
November 20, 1974
November 1, 1975
September 29, 1976
September 29, 1979
August 27, 1980
November 22, 1988
April 14, 1989
June 28, 1989
January 2, 1992
September 29, 1992
February 9, 1994
February 23, 1995
July 26, 1995
September 27, 1995
BY-LAWS
OF
TESORO PETROLEUM CORPORATION
(As Amended September 27, 1995)
ARTICLE I
Meeting of Stockholders
Section 1.1 Annual Meetings. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as properly
may come before such meeting shall be held on such date, and at such time and
place within or without the State of Delaware, as may be designated by the Board
of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders for any
proper purpose or purposes may be called at any time by the Board of Directors,
the Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President or any Vice President, to be held on such date, and at
such time and place within or without the State of Delaware, as the Board of
Directors, the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, the President, or a Vice President, whichever has called the
meeting, shall direct. A special meeting of the stockholders shall be called by
the Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President, or any Vice President whenever stockholders holding
shares representing a majority of the votes of the shares of the Corporation
then issued and outstanding and entitled to vote on matters to be submitted to
stockholders of the Corporation shall make application therefor in writing. Any
such written request shall state a proper purpose or purposes of the meeting and
shall be delivered to the Chairman of the Board of Directors, the Vice Chairman
of the Board of Directors, the President, or any Vice President. A special
meeting of the stockholders shall be called by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the President or any
Vice President, for the purpose of electing one additional member to the Board
of Directors in the event there should occur three tie votes of the Board of
Directors with respect to any matter or series of matters at any meeting or
series of meetings within a three consecutive month period.
Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of
the Board of Directors, the Vice Chairman of the Board of Directors, the
President, any Vice President, the Secretary or an Assistant Secretary, of every
meeting of stockholders (other than an adjourned meeting unless otherwise
required by statute) stating the purpose or purposes for which the meeting is
called, and the date and time when, and the place where, it is to be held shall
be either delivered personally or mailed to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the meeting,
except as otherwise provided by statute. If mailed, such notice shall be
directed to a stockholder at his address as it shall appear on the stock books
of the Corporation, unless he shall have filed with the Secretary a written
request that notices intended for him be mailed to some other address, in which
case it shall be mailed to the address designated in such request, and shall be
given when deposited in the United States mail, postage prepaid.
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Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of
the holders of record of shares representing a majority of the votes of the
shares then issued and outstanding and entitled to vote shall be necessary and
sufficient to constitute a quorum for the transaction of business, except where
otherwise provided by statute.
Section 1.5 Adjournments. In the absence of a quorum, a majority of the
votes of the stockholders entitled to vote, present in person or by proxy, or,
if no stockholder entitled to vote is present in person or by proxy, any officer
entitled to preside at or act as secretary of such meeting, may adjourn the
meeting from time to time until a quorum shall be present.
Section 1.6 Voting. Directors shall be chosen by a plurality of the votes
cast at the election, and, except where otherwise provided by statute, or the
Certificate of Incorporation, all other questions shall be determined by a
majority of the votes cast on such question.
Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy,
provided that the instrument authorizing such proxy to act shall have been
executed in writing (which shall include telegraphing or cabling) by the
stockholder himself or by his duly authorized attorney.
Section 1.8 Judges of Election. The Board of Directors may appoint judges
of election to serve at any election of directors and at balloting on any other
matter that may properly come before a meeting of stockholders. If no such
appointment shall be made, or if any of the judges so appointed shall fail to
attend, or refuse or be unable to serve, then such appointment may be made by
the presiding officers at the meeting.
Section 1.9 Consent of Stockholders in Lieu of Meeting.
(a) Any action required to be taken at any annual or special meeting of
the stockholders, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings or meetings of stockholders
are recorded. Delivery shall be made by hand or by certified or registered
mail, return receipt requested.
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(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty days
of the date the earliest dated consent is delivered to the Corporation, a
written consent or consents signed by a sufficient number of holders to take
action are delivered to the Corporation in the manner prescribed in
paragraph (c) of this Section.
(c) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than fifteen
days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to
fix a record date. The Board of Directors shall promptly, but in all events
within ten days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten days after the date on which such a request is
received, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by
the Board of Directors is required by applicable law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in accordance with
paragraphs (a) and (b) of this Section. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is
required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action.
(d) Within three business days after receipt of the earliest dated
consent delivered to the Corporation in the manner provided in this Section,
the Corporation shall retain nationally recognized independent inspectors of
elections for the purpose of performing a ministerial review of the validity
of consents and any revocations thereof. The Corporation shall promptly
deliver all consents and revocations of consents received by it to the
inspectors of election. The cost of retaining inspectors of election shall
be borne by the Corporation.
(e) At any time that stockholders soliciting consents in writing to
corporate action have a good faith belief that the requisite number of valid
and unrevoked consents to authorize or take the action specified has been
received by them, the consents shall be delivered by the soliciting
stockholders to the
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Corporation's registered office in the State of Delaware or principal place
of business or to the Secretary of the Corporation, together with a
certificate stating their belief that the requisite number of valid and
unrevoked consents has been received as of a specific date, which date shall
be identified in the certificate. In the event that delivery is made to the
Corporation's registered office in the State of Delaware, such delivery
shall be made by hand or by certified or registered mail, return receipt
requested.
(f) As promptly as practicable after the consents and revocations are
received by them, the inspectors of election shall issue a preliminary
report to the Corporation stating: (i) the number of shares represented by
valid and unrevoked consents; (ii) the number of shares represented by
invalid consents; (iii) the number of shares represented by invalid
revocations; and (iv) the number of shares entitled to submit consents as of
the record date. Unless the Corporation and the soliciting stockholders
agree to a shorter or longer period, the Corporation and the soliciting
stockholders shall have five days to review the consents and revocations and
to advise the inspectors and the opposing party in writing as to whether
they intend to challenge the preliminary report. If no timely written
notice of an intention to challenge the preliminary report is received, the
inspectors shall certify the preliminary report (as corrected or modified by
virtue of the detection by the inspectors of clerical errors) as their final
report and deliver it to the Corporation. If the Corporation or the
soliciting stockholders give timely written notice of an intention to
challenge the preliminary report, a challenge session shall be scheduled by
the inspectors as promptly as practicable. A transcript of the challenge
session shall be recorded by a certified court reporter. Following
completion of the challenge session, the inspectors shall issue as promptly
as practicable their final report and deliver it to the Corporation. A copy
of the final report shall be included in the book in which the proceedings
of meetings of stockholders are recorded.
(g) The Corporation shall give prompt notice to the stockholders of the
results of any consent solicitation or the taking of corporate action
without a meeting by less than unanimous written consent.
(h) This Section shall in no way impair or diminish the right of any
stockholder or director, or any officer whose title to office is contested,
to contest the validity of any consent or revocation thereof, or to take any
action with respect thereto.
Section 1.10 Nominations for Director and Proposal of Business.
(a) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made at
an annual meeting of the stockholders (a) pursuant to the Corporation's
notice of meeting, (b) by or at the direction of the Board of Directors or
(c) by any
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stockholder who was a stockholder of record at the time of giving of notice
provided for in this Section, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section.
(b) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to this Section, such stockholder
must have given timely notice thereof in writing to the Secretary, and such
business must be a proper subject for stockholder action under the Delaware
General Corporation Law. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not less than sixty days nor more than ninety days prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by more
than thirty days or delayed by more than sixty days from such anniversary
date, notice by the stockholder to be timely must be so delivered not
earlier than the ninetieth day prior to such annual meeting and not later
than the close of business on the later of the sixtieth day prior to such
annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitation of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director
if elected), (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made, and (c)
as to the stockholder giving the notice and such beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner, and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(c) Notwithstanding anything in this Section to the contrary, in the
event that the number of directors to be elected to the Board of Directors
is increased and there is no public announcement specifying the size of the
increased Board of Directors made by the Corporation at least seventy days
prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section shall also be considered
timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation
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not later than the close of business on the tenth day following the day on
which such public announcement is first made by the Corporation.
(d) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting
(a) by or at the direction of the Board of Directors or (b) by any
stockholder of the Corporation who is a stockholder of record at the time of
the Corporation's giving of notice provided for in this Section, who shall
be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder's notice required by this Section
shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the ninetieth day prior to such special
meeting and not later than the close of business on the later of the
sixtieth day prior to such special meeting or the tenth day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected
at such meeting.
(e) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible for election as
directors at a meeting of stockholders. Only such business shall be
conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section. The
Chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this Section and, if any
proposed nominations or business is not in compliance with this Section, to
declare that such defective proposal shall be disregarded.
(f) For purposes of this Section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service.
(g) Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section. Nothing in this Section shall be deemed
to affect any rights of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
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ARTICLE II
Board of Directors
Section 2.1 Number, Election and Term of Office. The number of directors
which shall constitute the whole Board of Directors shall be fixed from time to
time by resolution of the Board of Directors but shall not be less than three.
The directors shall be elected at the annual meeting of stockholders, except as
provided in Section 2.2, and each director elected at an annual meeting of
stockholders, and directors elected in the interim to fill vacancies and newly
created directorships shall hold office until the next annual meeting of
stockholders or until their successors are duly elected and qualified or until
their earlier resignation or removal. A director need not be a stockholder.
Section 2.2 Vacancies and Additional Directorships. Unless otherwise
provided in the Certificate of Incorporation or these By-laws: (1) vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote
as a single class may be filled by a majority of the directors then in office,
although less than a quorum; (2) whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
Certificate of Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office.
Section 2.3 The Chairman and the Vice Chairman of the Board of Directors.
The Board of Directors may appoint a Chairman of the Board of Directors and a
Vice Chairman of the Board of Directors who shall each be a director but need
not be a stockholder of the Corporation. The Chairman and the Vice Chairman
shall not, by reason of said titles, be or be deemed to be an officer of the
Corporation. The Chairman or, in his absence, the Vice Chairman shall, when
present, preside at all meetings of the stockholders and of the Board of
Directors. Each of the Chairman and Vice Chairman may sign, with an officer
thereunto duly authorized, certificates of stock of the Corporation, the
issuance of which shall have been duly authorized (the signatures to which may
be facsimile signatures) and may sign and execute in the name of the Corporation
other instruments which the Board of Directors has authorized to be executed.
From time to time, the Chairman or, in his absence or at his direction, the Vice
Chairman shall report to the Board of Directors all matters which to their
knowledge the interests of the Corporation may require be brought to their
attention. The Chairman and the Vice Chairman shall perform such other duties
as are given to them by these By-laws or as from time to time may be assigned to
them by the Board of Directors.
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Section 2.4 Meetings. A meeting of the Board of Directors shall be held for
organization, for the election of officers and for the transaction of such other
business as may properly come before the meeting, within thirty days after each
annual election of directors.
The Board of Directors by resolution may provide for the holding of regular
meetings and may fix the times and places at which such meetings shall be held.
Notice of regular meetings shall not be required to be given, provided that
whenever the time or place of regular meetings shall be fixed or changed, notice
of such action shall be mailed promptly to each director who shall not have been
present at the meeting at which such action was taken, addressed to him at his
residence or usual place of business.
Special meetings of the Board of Directors may be called by the Chairman of
the Board of Directors, the Vice Chairman of the Board of Directors, the
President, any Vice President or any two directors. Except as otherwise
required by statute, notice of each special meeting shall be mailed to each
director, addressed to him at his residence or usual place of business, or shall
be sent to him at such place by telegram, radio or cable, or telephoned or
delivered to him personally, not later than two days before the day on which the
meeting is to be held. Such notice shall state the time and place of such
meeting, but unless otherwise required by statute, the Certificate of
Incorporation of the Corporation or these By-laws need not state the purposes
thereof.
Notice of any meeting need not be given to any director who shall attend
such meeting in person or who shall waive notice thereof, before or after such
meeting, in writing or by telegram, radio or cable.
Section 2.5 Quorum. One-third of the total number of members of the Board
of Directors as constituted from time to time, but not less than two, shall be
necessary and sufficient to constitute a quorum for the transaction of business.
In the absence of a quorum, a majority of those present at the time and place of
any meeting may adjourn the meeting from time to time until a quorum shall be
present, and the meeting may be held as adjourned without further notice of
waiver. A majority of those present at any meeting at which a quorum is present
may decide any question brought before such meeting, except as otherwise
provided by law, the Certificate of Incorporation or these By-laws.
Section 2.6 Resignation of Directors. Any director may resign at any time
by giving written notice of such resignation to the Board of Directors, the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
the President, any Vice President or the Secretary. Any such resignation shall
take effect at the time specified therein, or, if no time be specified, upon
receipt thereof by the Board of Directors or one of the above-named officers;
and, unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
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Section 2.7 Removal of Directors. At any special meeting of the
stockholders, duly called for the purpose of removing a director or directors as
provided in these By-laws, any director or directors may, by the affirmative
vote of the holders of shares representing a majority of the votes of all the
shares of stock outstanding and entitled to vote for the election of directors,
be removed from office, either for or without cause. Such vacancy shall be
filled by the directors as provided in Section 2.2.
Section 2.8 Compensation of Directors. Directors shall receive such
reasonable compensation for their service as such, whether in the form of salary
or a fixed fee for attendance at meetings, with expenses, if any, as the Board
of Directors may from time to time determine. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 2.9 Indemnification. The Corporation shall indemnify to the full
extent authorized or permitted by the laws of the State of Delaware any person
who is made, or threatened to be made, a party to an action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or serves or served any other enterprise at the request of the
Corporation.
ARTICLE III
Committees of the Board
Section 3.1 Designation, Power, Alternate Members and Term of Office. The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees including an Executive Committee, each
committee to consist of one or more of the directors of the Corporation. Any
such committee, to the extent provided in such resolution or in these By-laws,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger of
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the Corporation or, unless the
resolution of the Board of Directors establishing any such committee shall
expressly so provide or these By-laws shall expressly so provide, declaring a
dividend on the Corporation's capital stock or authorizing the issuance of the
Corporation's capital stock. The Board may designate one or more directors as
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alternate members of any committee who, in the order specified by the Board, may
replace any absent or disqualified member at any meeting of the committee. If
at a meeting of any committee one or more of the members thereof should be
absent or disqualified, and if either the Board of Directors has not so
designated any alternate member or members, or the number of absent or
disqualified members exceeds the number of alternate members who are present at
such meeting, then the member or members of such committee (including
alternates) present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another director to
act at the meeting in the place of any such absent or disqualified member. The
term of office of the members of each committee shall be as fixed from time to
time by the Board, subject to these By-laws; provided, however, that any
committee member who ceases to be a member of the Board shall ipso facto cease
to be a committee member. Each committee shall appoint a secretary, who may be
the Secretary of the Corporation or an Assistant Secretary thereof.
Section 3.2 Meetings, Notices and Records. Each committee may provide for
the holding of regular meetings, with or without notice, and may fix the time
and place at which such meetings shall be held. Special meetings of each
committee shall be held upon call by or at the direction of its chairman or, if
there be no chairman, by or at the direction of any two of its members, at the
time and place specified in the respective notices or waivers of notice thereof.
Notice of each special meeting of a committee shall be mailed to each member of
such committee, addressed to him at his residence or usual place of business, at
least two days before the day on which the meeting is to be held, or shall be
sent by telegram, radio or cable, addressed to him at such place, or telephoned
or delivered to him personally not later than the day before the day on which
the meeting is to be held. Notice of any meeting of a committee need not be
given to any member thereof who shall attend the meeting in person or who shall
waive notice thereof, before or after such meeting, in writing or by telegram,
radio or cable. Notice of any adjourned meeting need not be given. Each
committee shall keep a record of its proceedings.
Section 3.3 Quorum and Manner of Acting. At each meeting of any committee
the presence of one-third but not less than two of its members then in office
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of such committee. In the absence of
a quorum, a majority of the members present at the time and place of any meeting
may adjourn the meeting from time to time until a quorum shall be present.
Subject to the foregoing and other provisions of these By-laws and except as
otherwise determined by the Board of Directors, each committee may make rules
for the conduct of its business. Any determination made in writing and signed
by all the members of such committee shall be as effective as if made by such
committee at a meeting.
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Section 3.4 Resignations. Any member of a committee may resign at any time
by giving written notice of such resignation to the Board of Directors, the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
the President, any Vice President or the Secretary. Any such resignation shall
take effect at the time specified therein, or if no time be specified, upon
receipt thereof by the Board of Directors or one of the above-named officers;
and, unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3.5 Removal. Any member of any committee may be removed at any time
by the Board of Directors with or without cause.
Section 3.6 Vacancies. If any vacancy shall occur in any committee by
reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by a resolution passed by a majority of the
whole Board of Directors.
Section 3.7 Compensation. Committee members shall receive such reasonable
compensation for their services as such, whether in the form of salary or a
fixed fee for attendance at meetings, with expenses, if any, as the Board of
Directors may from time to time determine. Nothing herein contained shall be
construed to preclude any committee member from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1 Officers. The officers of the Corporation shall be a President,
one or more Vice Presidents (which may include Executive Vice Presidents, Group
Vice Presidents, Senior Vice Presidents and other categories of Vice
Presidents), a Secretary, a Treasurer, and such other officers as may be
appointed in accordance with the provisions of Section 4.3.
Section 4.2 Election, Term of Office and Qualifications. Each officer
(except such officers as may be appointed in accordance with the provisions of
Section 4.3) shall be elected by the Board of Directors. Each such officer
(whether elected at the first meeting of the Board of Directors after the annual
meeting of stockholders or to fill a vacancy otherwise) shall hold his office
until the first meeting of the Board of Directors after the next annual meeting
of stockholders and until his successor shall have been elected, or until his
death, or until he shall have resigned in the manner provided in Section 4.4 or
shall have been removed in the manner provided in Section 4.5.
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Section 4.3 Subordinate Officers and Agents. The Board of Directors from
time to time may appoint other officers or agents (including one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers), to hold office for such period, have such authority and
perform such duties as are provided in these By-laws or as may be provided in
the resolutions appointing them. The Board of Directors may delegate to any
officer or agent the power to appoint any such subordinate officers or agents
and to prescribe their respective terms of office, authorities and duties.
Section 4.4 Resignations. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, the Chairman of
the Board of Directors, the Vice Chairman of the Board of Directors, the
President, any Vice President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if no time be specified, upon receipt
thereof by the Board of Directors or one of the above-named officers; and,
unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.5 Removal. Any officer specifically designated in Section 4.1 may
be removed at any time, either with or without cause, at any meeting of the
Board of Directors by the vote of a majority of all the Directors then in
office. Any officer or agent appointed in accordance with the provisions of
Section 4.3 may be removed, either with or without cause, by the Board of
Directors at any meeting, by the vote of a majority of the Directors present at
such meeting, or by any superior officer or agent upon whom such power of
removal shall have been conferred by the Board of Directors.
Section 4.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these By-laws for
regular election or appointment to such office.
Section 4.7 The President. The President shall be the Chief Executive
Officer of the Corporation. Subject to the direction of the Board of Directors,
he shall have general charge of the business, affairs and property of the
Corporation and general supervision over the officers and agents of the
Corporation. He shall see that all orders and resolutions of the Board of
Directors are carried into effect. In the absence of the Chairman of the Board
of Directors and the Vice Chairman of the Board of Directors, he shall preside
at all meetings of stockholders. He may sign, with any other officer thereunto
duly authorized, certificates of stock of the Corporation the issuance of which
shall have been duly authorized (the signature to which may be a facsimile
signature), and may sign and execute in the name of the Corporation, deeds,
mortgages, bonds, contracts, agreements or other instruments duly authorized by
the Board of Directors except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by statute to some
other officer or
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agent. He shall perform such other duties as are given to him by these By-laws
or as from time to time may be assigned to him by the Board of Directors.
Section 4.8 The Chief Operating Officer and Executive Vice President. The
Chief Operating Officer and Executive Vice President shall be the Chief
Operating Officer of the Corporation. Subject to the direction of the Board of
Directors and the President, he shall have general charge of the business,
affairs and property of the Corporation and general supervision over the
officers and agents of the Corporation. He shall see that all orders and
resolutions of the Board of Directors and the President are carried into effect.
In the absence of the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors and the President, he shall preside at all meetings of
stockholders. He may sign, with any other officer thereunto duly authorized,
certificates of stock of the Corporation the issuance of which shall have been
duly authorized (the signature to which may be a facsimile signature), and may
sign and execute in the name of the Corporation, deeds, mortgages, bonds,
contracts, agreements or other instruments duly authorized by the Board of
Directors except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by statute to some other
officer or agent. He shall perform such other duties as are given to him by
these By-laws or as from time to time may be assigned to him by the Board of
Directors or the President.
Section 4.9 The Vice Presidents. In the event of the absence or disability
of the President, any Vice President designated by the President (or in the
absence of such designation, the Vice President designated by the Board of
Directors) shall perform all the duties of the President and, when so acting,
shall have all the powers of and be subject to all restrictions upon the
President. Any Vice President may also sign, with any other officer thereunto
duly authorized, certificates of stock of the Corporation the issuance of which
shall have been duly authorized (the signature to which may be a facsimile
signature), and may sign and execute in the name of the Corporation, deeds,
mortgages, bonds and other instruments duly authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by statute to some other
officer or agent. Each Vice President shall perform such other duties as are
given to him by these By-laws or as from time to time may be assigned to him by
the Board of Directors or the President.
Section 4.10 The Secretary. The Secretary shall
(a) record all the proceedings of the meetings of the stockholders, the
Board of Directors, and any committees in a book or books to be kept for
that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these By-laws and as required by statute;
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(c) whenever any committee shall be appointed in pursuance of a
resolution of the Board of Directors, furnish the chairman of such committee
with a copy of such resolution;
(d) be custodian of the records and of the seal of the Corporation, and
cause such seal to be affixed to all certificates representing stock of the
Corporation prior to the issuance thereof and to all instruments the
execution of which on behalf of the Corporation under its seal shall have
been duly authorized;
(e) see that the lists, books, reports, statements, certificates and
other documents and records required by statute are properly kept and filed;
(f) have charge of the stock and transfer books of the Corporation, and
exhibit such stock book at all reasonable times to such persons as are
entitled by statute to have access thereto;
(g) sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of Secretary
and such other duties as are given to him by these By-laws or as from time
to time may be assigned to him by the Board of Directors, the President or
the Chief Operating Officer and Executive Vice President.
Section 4.11 Assistant Secretaries. At the request of the Secretary or in
his absence or disability, the Assistant Secretary designated by him (or in the
absence of such designation, the Assistant Secretary designated by the Board of
Directors, the President or the Chief Operating Officer and Executive Vice
President) shall perform all the duties of the Secretary and, when so acting,
shall have all the powers of and be subject to all restrictions upon the
Secretary. The Assistant Secretaries shall perform such other duties as from
time to time may be assigned to them by the Board of Directors, the President,
the Chief Operating Officer and Executive Vice President or the Secretary.
Section 4.12 The Treasurer. The Treasurer shall
(a) have charge of and supervision over and be responsible for the
funds, securities, receipts and disbursements of the Corporation;
(b) cause the monies and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such banks
or trust companies or with such bankers or other depositaries as shall be
selected
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in accordance with Section 5.3 of these By-laws or to be otherwise dealt
with in such manner as the Board of Directors may direct;
(c) cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositaries of the Corporation, and cause to be
taken and preserved proper vouchers for all monies disbursed;
(d) render to the Board of Directors or the President, whenever
requested, a statement of the financial condition of the Corporation and of
all his transactions as Treasurer;
(e) cause to be kept at the Corporation's principal office correct
books of account of all its business and transactions and such duplicate
books of account as he shall determine and upon application cause such books
or duplicates thereof to be exhibited to any director;
(f) be empowered, from time to time, to require from the officers or
agents of the Corporation reports or statements giving such information as
he may desire with respect to any and all financial transactions of the
Corporation;
(g) sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of Treasurer
and such other duties as are given to him by these By-laws or as from time
to time may be assigned to him by the Board of Directors, the President or
the Chief Operating Officer and Executive Vice President.
Section 4.13 Assistant Treasurers. At the request of the Treasurer or in
his absence or disability, the Assistant Treasurer designated by him (or in the
absence of such designation, the Assistant Treasurer designated by the Board of
Directors, the President or the Chief Operating Officer and Executive Vice
President) shall perform all the duties of the Treasurer and, when so acting,
shall have all the powers of and be subject to all restrictions upon the
Treasurer. The Assistant Treasurers shall perform such other duties as from
time to time may be assigned to them by the Board of Directors, the President,
the Chief Operating Officer and Executive Vice President or the Treasurer.
Section 4.14 Salaries. The salaries of the officers of the Corporation
shall be fixed from time to time by the Board of Directors, except that the
Board of Directors may delegate to any person the power to fix the salaries or
other compensation of any officers or agents appointed in accordance with the
provisions of Section 4.3. No
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officer shall be prevented from receiving such salary by reason of the fact that
he is also a director of the Corporation.
Section 4.15 Surety Bonds. If the Board of Directors shall so require, any
officer or agent of the Corporation shall execute to the Corporation a bond in
such sum and with such surety or sureties as the Board of Directors may direct,
conditioned upon the faithful discharge of his duties, including
responsibilities for negligence and for the accounting for all property, funds
or securities of the Corporation which may come into his hands.
ARTICLE V
Execution of Instruments and
Deposit of Corporate Funds
Section 5.1 Execution of Instruments Generally. The Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, the President, any
Vice President, the Secretary or the Treasurer, subject to the approval of the
Board of Directors, may enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation. The Board of Directors
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authorization may be general or confined to specific
instances.
Section 5.2 Borrowing. No loans or advances shall be obtained or contracted
for, by or on behalf of the Corporation and no negotiable paper shall be issued
in its name, unless and except as authorized by the Board of Directors. Such
authorization may be general or confined to specific instances. Any officer or
agent of the Corporation thereunto so authorized may obtain loans and advances
for the Corporation, and for such loans and advances may make, execute and
deliver promissory notes, bonds, or other evidences of indebtedness of the
Corporation. Any officer or agent of the Corporation thereunto so authorized
may pledge, hypothecate or transfer as security for the payment of any and all
loans, advances, indebtedness and liabilities of the Corporation, any and all
stocks, bonds, other securities and other personal property at any time held by
the Corporation, and to that end may endorse, assign and deliver the same and so
every act and thing necessary or proper in connection therewith.
Section 5.3 Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to its credit in such banks or trust
companies or with such bankers or other depositaries as the Board of Directors
may select, or as may be selected by any officer or officers or agent or agents
authorized so to do by
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the Board of Directors. Endorsements for deposit to the credit of the
Corporation in any of its duly authorized depositaries shall be made in such
manner as the Board of Directors from time to time may determine.
Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers or agent or
agents of the Corporation, and in such manner, as from time to time shall be
determined by the Board of Directors.
Section 5.5 Proxies. Proxies to vote with respect to shares of stock of
other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
the President or a Vice President or by any other person or persons thereunto
authorized by the Board of Directors.
ARTICLE VI
Record Dates
Section 6.1. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, 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, conversation 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 be not more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. Only those
stockholders of record on the date so fixed shall be entitled to any of the
foregoing rights, notwithstanding the transfer of any such stock on the books of
the Corporation after any such record date fixed by the Board of Directors.
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ARTICLE VII
Corporate Seal
Section 7.1. The corporate seal shall be circular in form and shall bear
the name of the Corporation and words and figures denoting its organization
under the laws of the State of Delaware and the year thereof and otherwise shall
be in such form as shall be approved from time to time by the Board of
Directors.
ARTICLE VIII
Fiscal Year
Section 8.1. The fiscal year of the Corporation shall begin on the 1st day
of January in each year and shall end on the 31st day of December in the same
year.
ARTICLE IX
Amendments
Section 9.1. Except as otherwise provided in Article VII of the Certificate
of Incorporation, all By-laws of the Corporation may be amended, altered or
repealed, and new By-laws may be made, by the affirmative vote of the holders of
record of shares representing a majority of the votes of the outstanding shares
of stock of the Corporation entitled to vote cast at any annual or special
meeting, or by the affirmative vote of a majority of the Directors cast at any
regular or special meeting at which a quorum is present.
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