BY-LAWS
OF
KANSAS CITY SOUTHERN
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
AS AMENDED AND RESTATED TO SEPTEMBER 24, 2002
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of stockholders for any purpose
may be held at such time and place, within or without the State of Delaware, as
shall be designated by the Board of Directors and stated in the notice of the
meeting.
SECTION 2. ANNUAL MEETINGS. The annual meeting of the stockholders, at
which they shall elect directors and transact such other business as may
properly be brought before the meeting, shall be held on the first Thursday of
May in each year unless the Board of Directors shall designate some other date
therefor in April through September.
To be properly brought before the meeting, business must be either (i)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (ii) otherwise properly brought
before the meeting by or at the direction of the Board of Directors, or (iii)
otherwise properly brought before the meeting by a stockholder. In addition to
any other applicable requirements, for business to be properly brought before
the meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, such a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 45 days nor more
than 90 days prior to the meeting; PROVIDED, HOWEVER, that in the event that the
meeting is designated by the Board of Directors to be held at a date other than
the first Thursday in May and less than 60 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, to be
timely, the notice by the stockholder must be so received not later than the
close of business on the 15th day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made, whichever
first occurs. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and address
of the stockholder proposing such business, (iii) the class and number of shares
of capital stock of the Corporation which are beneficially owned by the
stockholder and the name and address of record under which such stock is held
and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2 of Article I; PROVIDED, HOWEVER, that
nothing in this Section 2 of Article I shall be deemed to preclude discussion by
any stockholder of any business properly brought before the annual meeting.
The Chairman of the annual meeting shall have the power to determine
whether or not business was properly brought before the meeting in accordance
with the provisions of this Section 2 of Article I, and, if the Chairman should
determine that any such business was not properly brought before the meeting,
the Chairman shall so declare to the meeting and any such business shall not be
transacted.
SECTION 3. NOTICE OF ANNUAL MEETINGS. Written notice of each annual
meeting of the stockholders stating the place, day and hour of the meeting,
shall be given to each stockholder entitled to vote thereat, at least ten (10)
days before the date of the meeting.
SECTION 4. QUORUM. Except as otherwise required by statute, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority in number of shares of the stock
issued and outstanding and entitled to vote, shall constitute a quorum at all
meetings of the stockholders. If, at any such meeting, such quorum shall not be
present or represented, the stockholders present in person or by proxy shall
have power to adjourn the meeting from time to time without notice other than
announcement at the meeting until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present in person or by proxy,
any business may be transacted which might have been transacted at the meeting
as originally noticed.
SECTION 5. VOTING. Each holder of shares of common stock and preferred
stock shall be entitled to vote on the basis of one vote for each voting share
held by him, except as provided in the Certificate of Incorporation and except
that in elections for directors when the holders of the preferred stock do not
have the right, voting as a class, to elect two directors, each holder of voting
shares shall be entitled to as many votes as shall equal the number of shares
which he is entitled to vote, multiplied by the number of directors to be
elected and he may cast all of such votes for a single director or may
distribute them among the number to be voted for, or any two or more of them, as
he may see fit.
SECTION 6. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Board of
Directors shall cause the officer who has charge of the stock ledger of the
corporation to prepare and make, at least ten (10) days before every election of
directors, a complete list of the stockholders entitled to vote at said
election, arranged in alphabetical order, showing the address of and the number
of shares of common stock and preferred stock registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the election, either at a place within the
city where the election is to be held, and which place be specified, at the
place where said meeting, or, if not specified, at the place where said meeting
is to be held, and the list shall be produced and kept at the time and place of
election during the whole time thereof, and subject to the inspection of any
stockholder who may be present.
SECTION 7. INSPECTORS. For each meeting of stockholders there may be
appointed by the Board of Directors or by the Chairman of the meeting three (3)
inspectors of election. If any inspector shall fail or be unable to serve as
inspector or for any reason be unable to complete his duties, an alternate
inspector shall be appointed by the Board of Directors or the Chairman of the
meeting. The inspectors of election shall examine and canvass the proxies and
ballots, and make and submit a signed report of the votes cast at the meeting,
which shall be entered at large upon the records.
SECTION 8. INSPECTORS' OATH. An inspector, before he enters on the
duties of his office, shall take and subscribe an oath substantially in the
following form before any officer authorized by law to administer oaths:
"I do solemnly swear that I will execute the duties of an inspector of
the election now to be held with strict impartiality and according to
the best of my ability."
SECTION 9. SPECIAL MEETING. Special meetings of the stockholders for
any purpose or purposes may be called at any time by the Chairman of the Board
of Directors, the Chief Executive Officer or the President, or at the request in
writing of a majority of the Board of Directors, by giving ten (10) days written
notice thereof to the stockholders. Business transacted at any special meeting
of the stockholders shall be limited to the purpose stated in the notice.
SECTION 10. ORGANIZATION. The Chairman of the Board of Directors, and
in his absence the Chief Executive Officer, the President or one of the Vice
Presidents, shall call meetings of the stockholders to order and act as Chairman
of such meeting. In the absence of all these officers, the Board of Directors
may appoint a Chairman of the meeting. The Secretary of the Corporation shall
act as secretary at all meetings of the shareholders; but the Board of Directors
may designate an Assistant Secretary for that purpose before the meeting and, if
no such designation shall have been made, then such designation may be made by
the Chairman of the meeting. The conduct of any meeting of the stockholders
shall be governed by such rules, regulations and procedures as the Chairman of
the meeting, in his sole and exclusive discretion shall determine.
SECTION 11. STOCKHOLDER NOMINATION OF DIRECTORS. Not less than 45 days
nor more than 90 days prior to the date of any meeting of the stockholders at
which directors are to be elected ("the Election Meeting") any stockholder who
intends to make a nomination at the Election Meeting shall deliver a notice in
writing (the "Stockholder's Notice") to the Secretary of the Corporation setting
forth (a) as to each nominee whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of the nominee, (ii) the principal occupation or employment of
the nominee, (iii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the nominee and (iv) any other
information concerning the nominee that would be required, under the rules of
the Securities and Exchange Commission, in a proxy statement soliciting proxies
for the election of such nominee; and (b) as to the stockholder giving the
notice, (i) the name and address of the stockholder and (ii) the class and
number of shares of capital stock of the Corporation which are beneficially
owned by the stockholder and the name and address of record under which such
stock is held; PROVIDED, HOWEVER, that in the event that the Election Meeting is
designated by the Board of Directors to be held at a date other than the first
Thursday in May and less than 60 days' notice or prior public disclosure of the
date of the Election Meeting is given or made to stockholders, to be timely, the
Stockholder's Notice must be so delivered not later than the close of business
on the 15th day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made, whichever first occurs.
The Stockholder's Notice shall include a signed consent of each such nominee to
serve as a director of the Corporation, if elected. The Corporation may require
any proposed nominee or stockholder proposing a nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of the Corporation
or to properly complete any proxy or information statement used for the
solicitation of proxies in connection with such Election Meeting.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The general management of the business and
affairs and all the corporate powers of the Corporation shall be vested in and
exercised by its Board of Directors which shall exercise all of the powers of
the Corporation except such as are by statute, or by the Certificate of
Incorporation or by these By-Laws, conferred upon or reserved to the
stockholders. The directors shall act only as a Board and the individual
directors shall have no power as such.
SECTION 2. NUMBER, TERM AND QUALIFICATIONS. The number of directors
shall not be less than three nor more than eighteen, the exact number of
directors to be determined from time to time by resolution adopted by a majority
of the whole Board, and such exact number shall be eighteen until otherwise
determined by resolution adopted by a majority of the whole Board. Directors
need not be stockholders.
The Board of Directors shall be divided into three classes as nearly
equal in number as possible. At each annual meeting of stockholders, successors
to directors of the class whose terms then expire shall be elected to hold
office for a term expiring at the third succeeding annual meeting of
stockholders. When the number of directors is changed, any newly created
directorships or any decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as possible.
Notwithstanding the foregoing, whenever the holders of the preferred stock shall
have the right, voting as a class, to elect two directors at the next annual
meeting of stockholders, the terms of all directors shall expire at the next
annual meeting of stockholders, and then and thereafter all directors shall be
elected for a term of one year expiring at the succeeding annual meeting.
From and after January 19, 1990, no person who has attained the age of
72 shall be eligible to be nominated or to serve as a member of the Board of
Directors, but any person who shall attain the age of 72 during the term of
directorship to which he was elected shall be eligible to serve the remainder of
such term; provided, however, that any person, regardless of age, who, on
January 19, 1990, is an incumbent director, shall be eligible to be nominated
for election and to serve one (1) additional term.
SECTION 3. ELECTION OF DIRECTORS. Directors shall be elected at the
annual meetings of stockholders by ballot in the manner provided in these
By-Laws and the Certificate of Incorporation.
SECTION 4. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Newly created
directorships and vacancies which shall occur in the Board of Directors because
of death, resignation, disqualification or any other cause, may be filled by a
majority of the directors then in office, though less than a quorum, pursuant to
Section 223 of the General Corporation Law of Delaware. Such directors may, by
resolution, eliminate any vacant directorship thereby reducing the size of the
whole Board of Directors but in no event shall the size of the Board of
Directors be reduced to less than three directors. No decrease in the Board of
Directors shall shorten the term of any incumbent directors.
SECTION 5. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the date of the receipt of
such notice or at any later time specified therein. Unless otherwise provided
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 6. ORGANIZATION. The Board of Directors shall hold its
organizational meeting as soon as practicable after the Annual Meeting of
Stockholders. The Chairman of the Board of Directors, or in his absence the
President, shall preside at all meetings of the Board of Directors.
SECTION 7. PLACE OF MEETINGS. The Board of Directors may hold its
meetings, both regular and special, at such place or places, within or without
the State of Delaware as determined by the Board of Directors.
SECTION 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such times and at such places as shall from time
to time be determined by the Board of Directors.
SECTION 9. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called at the request of the Chairman of the Board of Directors, the
Executive Committee, or of the President, or of any three members of the Board
of Directors. Notice of the time and place of such meeting shall be given either
by mail to each director at least three (3) days before such meeting or
personally, by telephone, or by telegram to each director at least twelve (12)
hours before such meeting.
SECTION 10. QUORUM. A majority of the Board of Directors at a meeting
duly assembled shall be necessary to constitute a quorum for the transaction of
business except as otherwise provided by statute, by the Certificate of
Incorporation or by these By-Laws. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. In the absence of a quorum, a majority of the directors present
may adjourn the meeting from time to time until a quorum be present, without
notice other than by announcement at the meeting.
SECTION 11. REPORT TO STOCKHOLDERS. The President and Board of
Directors shall make a report or statement of the affairs of the Corporation at
each regular annual meeting of the stockholders subsequent to the first annual
meeting.
SECTION 12. COMPENSATION. The directors may receive reasonable fees to
be determined from time to time by the Board of Directors for services actually
performed in attending meetings and for other services actually performed and
the expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board of Directors. A director who is, at the
same time, an officer or employee of the Corporation or of any subsidiary or
affiliate, shall not be entitled to receive any compensation or fee for service
as a director or as a member of any committee of the Board of Directors.
SECTION 13. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise
restricted by the Certificate of Incorporation or 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
Directors 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 of
Directors or Committee.
ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE: ORGANIZATION AND POWERS. There shall be
an Executive Committee to consist of the Chairman of the Board of Directors, the
Chief Executive Officer and two (2) or more non-officer directors, the number of
which being fixed from time to time by resolution adopted by a majority vote of
the whole Board of Directors. The Board of Directors shall elect the members of
the Executive Committee by vote of a majority of the whole Board of Directors
and one member of the Executive Committee shall be elected as Chairman by the
vote of a majority of the whole Board of Directors. The members of the Executive
Committee shall be elected annually at the Board's organizational meeting or as
soon as thereafter as possible.
When the Board of Directors is not in session, the Executive Committee
shall have and may exercise all the powers of the Board of Directors in the
management of the business and affairs of the Corporation in all cases in which
specific directions shall not have been given by the Board of Directors
including, but not limited to, the power to declare dividends on the common and
preferred stock of the Corporation, and to authorize the seal of the Corporation
to be affixed to all papers which may require it. The members of the Executive
Committee shall act only as a committee and individual members shall have no
power as such.
SECTION 2. COMPENSATION AND ORGANIZATION COMMITTEE: ORGANIZATION AND
POWERS. There shall be a Compensation and Organization Committee to consist of
three (3) or more non-employee directors, the number of which being fixed from
time to time by resolution adopted by a majority vote of the whole Board of
Directors, a majority of whom shall be a "disinterested person" within the
meaning ascribed thereto under Rule 16b-3 promulgated under the Securities
Exchange Act of 1934 as amended from time to time and interpreted by the
Securities and Exchange Commission. The Board of Directors shall elect the
members of the Compensation and Organization Committee by vote of a majority of
the whole Board of Directors, and one member of the Compensation and
Organization Committee shall be elected its Chairman by the vote of a majority
of the whole Board of Directors. The members of the Compensation and
Organization committee shall be elected annually at the Board's organizational
meeting or as soon thereafter as possible.
The Compensation and Organization Committee shall have the power: to
authorize and determine all salaries for the officers and supervisory employees
of the Corporation and subsidiary companies as may be prescribed from time to
time by resolution adopted by the Board of Directors; to administer the
incentive compensation plans of the Corporation, The Kansas City Southern
Railway Company and the other subsidiaries of the Corporation in accordance with
the powers and authority granted in such plans; and to determine any incentive
allowances to be made to officers and staff of the Corporation and its
subsidiaries. The Compensation and Organization Committee shall have the power
to administer the Employee Stock Purchase Plan of the Corporation under which
eligible employees of the Corporation and its subsidiaries and affiliates are
permitted to subscribe to and to purchase shares of the Corporation common stock
through payroll deductions.
The Compensation and Organization Committee shall have full power: to
act as the Stock Option Plan Committee to construe and interpret any stock
option plan or similar plan of the Corporation and all options, stock
appreciation rights and limited rights granted under this plan or any other
plan; to determine the terms and provisions of the respective option agreements,
including such terms and provisions as, in the judgement of the Committee, are
necessary or desirable to qualify any of the options as "incentive stock
options"; to establish and amend rules for its administration; to grant options,
stock appreciation rights and limited rights under any stock option plan of the
Corporation; to determine and designate the recipients of options, stock
appreciation rights and limited rights; to determine and designate the dates
that options, stock appreciation rights and limited rights are granted; to
determine and designate the number of shares subject to options, stock
appreciation rights and limited rights; to determine and designate the option
prices and option periods; and to correct any defect or supply any omission or
reconcile any inconsistency in any stock option plan of the Corporation or in
any option, stock appreciation right or limited right to the extent the
Committee deems desirable to carry any stock option plan or any option, stock
appreciation right or limited right into effect.
The Compensation and Organization Committee shall also have the power:
to review the consolidated earnings of the Corporation and to make
recommendations to the Board of Directors with respect to the allocation of
funds to the Corporation's Profit Sharing Plan; and to review the results of the
investment program of the Profit Sharing Plan and make reports thereof to the
Board of Directors.
The Compensation and Organization Committee shall also have the power
and duty to initiate, review and approve succession plans and major
organizational plans and changes within the Corporation and its subsidiaries.
SECTION 3. AUDIT COMMITTEE: ORGANIZATION AND POWERS. There shall be an
Audit Committee to consist of three (3) or more non-officer directors, the
number of which being fixed from time to time by resolution adopted by a
majority vote of the whole Board of Directors. The Board of Directors shall
elect the members of the Audit Committee by vote of a majority of the whole
Board of Directors and one member of the Audit Committee shall be elected as
Chairman by a vote of a majority of the whole Board of Directors. The members of
the Audit Committee shall be appointed by the Board of Directors to serve
staggered three-year terms.
The Audit Committee shall have the power and the duty to meet with and
consider suggestions from members of management and of the Corporation's
internal audit staff, as well as with the Corporation's independent accountants,
concerning the financial operations of the Corporation. The Audit Committee
shall additionally have the power to review audited financial statements of the
Corporation and consider and recommend the employment of, and approve the fee
arrangement with, independent accountants for both audit functions and for
advisory and other consulting services.
SECTION 4. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE: ORGANIZATION
AND POWERS. There shall be a Nominating and Corporate Governance Committee
consisting of three (3) or more directors, the number of which being fixed from
time to time by resolution adopted by a majority vote of the whole Board of
Directors. Each member of this Committee shall be affirmatively determined by a
majority vote of the whole Board of Directors to qualify as independent under
the New York Stock Exchange listing standards then in effect. The members of the
Nominating and Corporate Governance Committee shall be elected and vacancies
filled by the vote of a majority of the whole Board of Directors, and one member
of the Nominating and Corporate Governance Committee shall be elected its
Chairman by the vote of a majority of the whole Board of Directors. The members
of the Nominating and Corporate Governance Committee shall be elected by the
Board of Directors to serve staggered three-year terms.
The primary purposes of this Committee shall be to (i) identify and
recommend to the Board of Directors qualified nominees for election to the Board
of Directors (whether for election by the stockholders or by the Board of
Directors) and (ii) to advise the Board of Directors with respect to the
establishment, implementation and evaluation of corporate governance guidelines
applicable to the Company. The Committee shall prepare and present to the Board
of Directors for approval a written charter setting forth in more detail the
duties and responsibilities of the Committee.
SECTION 5. RULES, RECORDS AND REPORTS. The Committees may make and
adopt such rules and regulations governing their proceedings as they may deem
proper and which are consistent with the statutes of the State of Delaware, the
Certificate of Incorporation and By-Laws. The committees shall keep a full and
accurate record of all their acts and proceedings and report the same from time
to time to the Board of Directors.
SECTION 6. MEETINGS. Regular meetings of the committees shall be held
at such times and at such places as from time to time may be fixed by the
committees. Special meetings of the committees may be held at such other times
as may in the judgement of the Chairman or, he being absent, in the judgement of
a member, be necessary. Notice of regular meetings need not be given. Notice of
special meetings shall be given to each member by mail not less than three (3)
days before the meeting or personally, by telephone or telegram to each member
not less than twelve (12) hours before the meeting, unless the Chairman of the
committee, or a member acting in that capacity in his absence, shall deem a
shorter notice expedient.
SECTION 7. QUORUM. A majority of members of a committee shall
constitute a quorum for the transaction of business and the act of a majority of
those present shall be the act of the committee (except with respect to the
Compensation and Organization Committee, in which any act of the Compensation
and Organization Committee when acting as the Stock Option Plan Committee under
any stock option plan, must be authorized and approved by at least (3) members).
SECTION 8. SUBCOMMITTEES. A committee may appoint such subcommittees
as it shall deem necessary.
SECTION 9. VACANCIES. Any vacancy in a committee shall be filled by a
majority of the whole Board of Directors.
SECTION 10. SUBSTITUTE MEMBERS. Whenever at any time a member of any
committee shall be absent from a meeting of that committee and it shall be
necessary in order to constitute a quorum or, for other reason, it may be deemed
expedient or desirable, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously designate a director (subject to the eligibility requirements set
forth in Sections 2, 3, and 4 above) to serve and act in his stead; and in the
event that the absence of a committee member shall be prolonged, such substitute
member may, subject to the approval of the committee, continue to act for the
term of its duration. A director so designated shall rank as a duly qualified
member of the committee during incumbency, and shall be entitled to participate
in its deliberations with the same force and effect as if elected in the manner
herein elsewhere provided.
SECTION 11. COMPENSATION. Subject to the provisions of Section 12 of
Article II of these By-Laws, each member of any committee may receive a
reasonable fee to be fixed by the Board of Directors for services actually
performed in attending meetings, and for other services actually performed, and
shall receive expenses of attendance, if any actually incurred by him for
attendance at any meeting of the committee.
ARTICLE IV
OFFICERS, AGENTS AND EMPLOYEES
SECTION 1. ELECTION OF OFFICERS. The Board of Directors at its annual
organizational meeting, shall elect a Chairman of the Board of Directors and
President of the Corporation, who shall be a member of the Board of Directors.
The Board of Directors may elect a Chief Executive Officer and a Chief Operating
Officer, and the Chief Executive Officer shall be a member of the Board of
Directors.
SECTION 2. VICE PRESIDENTS. The Board of Directors may, in its discre-
tion, appoint an Executive Vice President and one or more additional Vice
Presidents.
SECTION 3. OTHER OFFICERS. The Board of Directors shall appoint a
Secretary, a Treasurer, a General Counsel and Comptroller. The Board of
Directors may also appoint one or more Assistant Secretaries, and one or more
Assistant Treasurers.
SECTION 4. POWERS, DUTIES AND RESPONSIBILITIES. The powers, duties and
responsibilities of the officers and employees of the Corporation, which are not
prescribed by statute, by the Certificate of Incorporation or by these By-Laws,
shall be defined in rules or regulations which may be adopted and from time to
time modified or changed by the Board of Directors.
SECTION 5. VACANCIES. The Board of Directors shall, as soon as
practicable, fill any vacancy in the office of Chairman of the Board of
Directors or President. Any vacancy in any other office may be filled
temporarily by the Chairman of the Board of Directors or the President. In case
of temporary incapacity or absence of any of the officers, the Chairman of the
Board of Directors, or the President, may make an appointment pro tem and confer
on such appointee full power and authority to act in place of any of said
officers or appointees so temporarily incapacitated or absent; but such
appointment shall be subject to change by the Board of Directors or by the
Executive Committee at any regular or special meeting.
SECTION 6. ABSENCE FROM DUTY. No officer or employee of the Corporation
shall be absent from duty without the consent of the President or the head of
the department in which he is employed.
SECTION 7. RESIGNATIONS. Any officer may resign at any time giving
written notice to the President or to the Secretary of the Corporation. Such
resignation shall take effect at the date of the receipt of such notice, or at
any later time specified therein and, unless otherwise provided therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 8. REMOVALS. All officers and agents of the Corporation shall
be subject to removal at any time by the affirmative vote of a majority of the
members of the Board of Directors present at any meeting. All officers and
employees not appointed by the Board of Directors shall hold their offices at
the discretion of the Executive Committee or of the officer appointing them.
SECTION 9. TERM OF OFFICE. The officers of the Corporation shall hold
office for one year and until their successors shall have been duly elected or
appointed and qualified, or until they shall die, resign or be removed.
SECTION 10. SALARIES. The salaries of officers elected or appointed by
the Board of Directors or by the Executive Committee, shall be fixed by the
Compensation and Organization Committee. The salaries of all other officers and
employees shall be fixed by the President, or by the heads of departments
subject to the approval of the President; and the compensation of all officers
and employees shall be subject to the control of the Board of Directors or of
the Compensation and Organization Committee.
No special compensation shall be paid to any officer or employee unless
authorized by the Board of Directors, the Executive Committee or the
Compensation and Organization Committee.
CHAIRMAN OF THE BOARD OF DIRECTORS
SECTION 11. DUTIES. The Chairman of the Board of Directors shall
preside at all meetings of the Stockholders and the Board of Directors at which
he is present and perform such other duties as the Board of Directors may
prescribe. In his absence, the President shall discharge the duties of the
Chairman of the Board of Directors.
CHAIRMAN OF THE EXECUTIVE COMMITTEE
SECTION 12. DUTIES. The Chairman of the Executive Committee shall
preside at all meetings of the Executive Committee. In the absence of the
Chairman of the Executive Committee, his duties shall be discharged by the
President.
PRESIDENT
SECTION 13. GENERAL POWERS AND DUTIES. The President shall have the
general care, supervision and control of the Corporation's business and
operation in all departments under control of the Board of Directors. The
President shall have such other powers and perform such other duties as the
Board of Directors may from time to time prescribe and shall perform such other
duties as are incidental to the office of President. In the absence or
incapacity of the Chairman of the Board of Directors, he shall preside at all
meetings of the Board of Directors and stockholders.
SECTION 14. APPOINTMENTS. Except as otherwise provided by statute, the
Certificate of Incorporation, or these By-Laws, the President may appoint such
additional officers and may employ such persons as he shall deem necessary for
the proper management of the business and property of the Corporation.
VICE PRESIDENTS
SECTION 15. POWERS AND DUTIES. The Vice Presidents shall have such
powers and perform such duties as shall from time to time be conferred and
prescribed by the Board of Directors or by the Executive Committee. The
Executive Vice President shall, however, be the ranking officer in the affairs
of the Corporation next below the President.
SECRETARY
SECTION 16. DUTIES. The Secretary, or, in his absence, an Assistant
Secretary, shall attend all meetings of the stockholders, of the Board of
Directors and of the Executive Committee, and shall record their proceedings. He
shall report to the Board of Directors and the Executive Committee and through
the respective Chairman.
SECTION 17. NOTICE OF MEETINGS. The Secretary shall give due notice of
all meetings of the stockholders and of the Board of Directors and of the
Executive Committee, where such notice is required by law, by the Certificate of
Incorporation, by these By-Laws, by the Board of Directors or by the Executive
Committee.
SECTION 18. CUSTODY OF SEAL, ETC. The Secretary shall be custodian of
the seal of the Corporation and of its records, and of such papers and documents
as may be committed to his care by the Board of Directors or of the Executive
Committee. He shall have power to affix the seal of the Corporation to
instruments to which the same is authorized to be affixed by the Board of
Directors or by the Executive Committee, and shall have power to attest the
same. He shall perform such other duties as may be assigned to him by the
Chairman of the Board of Directors, the President, the Board of Directors or the
Executive Committee, or as may be prescribed in the rules or regulations to be
adopted by the Board of Directors.
SECTION 19. DUTIES OF ASSISTANT SECRETARIES. The Assistant Secretary or
Secretaries shall perform such duties as may be assigned to him or them by the
Board of Directors or by the Executive Committee or the President, or as may be
prescribed in the rules or regulations, if any, to be adopted by the Board of
Directors or the Executive Committee; and, when authorized by the Board of
Directors or by the Executive Committee, he or they shall have the power to
affix the corporate seal to instruments and to attest the same, and to sign the
certificates of stock of the Corporation.
TREASURER
SECTION 20. DUTIES. The Treasurer, either in person or through
competent and faithful assistants, shall receive, keep and disburse all moneys,
belonging or coming to the Corporation; he shall keep regular, true and full
accounts of all receipts and disbursements, and make detailed reports of the
same to the President, to the Board of Directors or to the Executive Committee,
through the Chairman of said Board of Directors or Committee, as and when
required.
SECTION 21. OTHER DUTIES. The Treasurer shall perform such other duties
in connection with the administration of the financial affairs of the
Corporation as the Board of Directors or the Executive Committee shall assign to
him or as may be prescribed in the rules or regulations to be adopted by the
Board of Directors or the Executive Committee. The Treasurer shall give bond in
such amount as shall be required by the Board of Directors or by the Executive
Committee. Any Assistant Treasurer appointed pursuant to the provisions of these
By-Laws shall also give bond in such amount as shall be required by the Board of
Directors or by the Executive Committee.
GENERAL COUNSEL
SECTION 22. DUTIES. The General Counsel shall render such legal
services and perform such duties as the Board of Directors, Executive Committee,
Chairman of the Board of Directors, President or other elected or appointed
officer may request from time to time.
COMPTROLLER
SECTION 23. DUTIES. The Comptroller shall have charge of the Accounting
Department. He shall have the supervision and management of all accounts of the
Corporation, and shall prescribe, enforce and maintain the system of
bookkeeping, and the books, blanks, etc., for keeping the accounts of the
Corporation. He shall have the cooperation of all departments. He shall keep
regular sets of books, showing a complete record of the general business
transactions of the Corporation, and for that purpose shall receive from the
Treasurer, Assistant Treasurers and agents of the Corporation such daily or
other reports of receipts and disbursements as he may require.
SECTION 24. CUSTODY OF CONTRACTS. The Comptroller shall have the
custody of all written contracts and other similar written instruments to which
the Corporation is a party.
SECTION 25. STATEMENTS BY COMPTROLLER. The Comptroller shall render
such statements of the affairs of the Corporation, shown by his books and
records, as may be required for the information of the Board of Directors or of
the Executive Committee, and shall by proper distribution and classification of
the accounts under his charge, be prepared to furnish such reports as may be
required by the Chairman of the Board of Directors, the President, the Board of
Directors, and the Executive Committee, or any state or federal official.
ARTICLE V
CERTIFICATE OF STOCK
SECTION 1. PROVISION FOR ISSUE, TRANSFER AND REGISTRATION. The Board of
Directors shall provide for the issue, transfer and registration of the capital
stock of the Corporation in the City of New York or elsewhere, and for that
purpose may appoint the necessary officers, transfer agents and registrars of
transfers.
SECTION 2. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the President or a Vice President and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned.
SECTION 3. FACSIMILE SIGNATURES OF CERTIFICATES. The signature of any
officer, transfer agent, or registrar on a certificate for shares of the
Corporation may be facsimile. In case any officer, transfer agent or registrar
who has signed, or whose facsimile signature has been used on, any such
certificate or certificates shall cease to be such officer, transfer agent or
registrar of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer, transfer
agent or registrar of the Corporation. Record shall be kept by the Transfer
Agent of the number of each certificate, the date thereof, the name of the
person owning the shares represented thereby, and the number of shares. Every
certificate surrendered to the Corporation for transfer or otherwise in exchange
for a new certificate shall be canceled by perforation or otherwise with the
date of cancellation indicated thereon.
SECTION 4. TRANSFER OF STOCK. Transfer of stock of the capital stock of
the Corporation shall be made only on the books of the Corporation by the holder
thereof, or by his attorney thereunto authorized by a power of attorney duly
executed and filed with the Transfer Agent of the Corporation, and on surrender
for cancellation of the certificate or certificates for such shares. A person in
whose name shares of stock stand on the books of the Corporation and no one else
shall be deemed the owner thereof as regards the Corporation.
SECTION 5. REGISTRAR AND TRANSFER AGENT. The Corporation shall at all
times maintain a registrar, which shall in every case be a bank or trust
company, and a transfer agent, to be appointed by the Board of Directors, in
accordance with the requirements of the New York Stock Exchange, and
registration and transfer of the Corporation's stock certificates shall be in
accordance with the rules and regulations of said stock exchange. The Board of
Directors may also make such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the capital stock of the Corporation.
SECTION 6. CLOSING OF TRANSFER BOOKS; RECORD DATE. The Board of
Directors may close the stock transfer books of the Corporation for a period not
more than sixty (60) days nor less than ten (10) days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect. In lieu of closing the stock transfer books
as aforesaid, the Board of Directors may fix in advance a date, not more than
sixty (60) days nor less than ten (10) days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, any such meeting, and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock and, in such case, such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights, as the case may
be notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
ARTICLE VI
SEAL
SECTION 1. The authorized seal shall have inscribed thereon the name of
the Corporation, the year of incorporation and the name of the state of
incorporation. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise applied.
ARTICLE VII
FISCAL YEAR
SECTION 1. The fiscal year of the Corporation shall commence on the
first day of January of each year.
ARTICLE VIII
NOTICES
SECTION 1. FORM OF NOTICE. Where notice, other than by publication, is
required to be given by Delaware law, the Certificate of Incorporation or
By-Laws, notice to directors and stockholders shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such directors or stockholders at such address as appears on the books of the
Corporation. Notice by mail shall be deemed to be given at the time when the
same shall be mailed. Notice to directors may also be given personally, by
telephone, by telegram or in such other manner as may be provided in these
By-Laws.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under 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 herein, shall be deemed equivalent thereto.
ARTICLE IX
INDEMNIFICATION, AMENDMENTS AND MISCELLANEOUS
SECTION 1. INDEMNIFICATION. Each person who, at any time is, or shall
have been, a director, officer, employee or agent of the Corporation, and is
threatened to be or is made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is, or was, a director, officer,
employee or agent of the Corporation, or served at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified against expense (including attorneys' fees), judgment, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with any such action, suit or proceeding to the full extent provided under
Section 145 of the General Corporation Law of the State of Delaware. The
foregoing right of indemnification shall in no way be exclusive of any other
rights of indemnification to which any such director, officer, employee or agent
may be entitled, under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 2. AMENDMENTS. These By-Laws may be altered, amended or
repealed by a vote of a majority of the whole Board of Directors at any meeting
of the Board of Directors. The Board of Directors in its discretion may, but
need not, submit any proposed alteration, amendment or repeal of the By-Laws to
the stockholders at any regular or special meeting of the stockholders for their
adoption or rejection; provided notice of the proposed alteration, amendment or
repeal be contained in the notice of such stockholders' meeting.
SECTION 3. PROXIES. Unless otherwise provided by resolution of the
Board of Directors, the President or, in his absence or disability, a Vice
President, from time to time in the name and on behalf of the Corporation: may
appoint an attorney or attorneys, agent or agents of the Corporation (who may be
or include himself), in the name and on behalf of the Corporation to cast the
votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporations or to consent in writing to any action by
such other corporation; may instruct the person or persons so appointed as to
the manner of casting such votes or giving such consent; and may execute or
cause to be executed in the name and on behalf of the Corporation and under its
corporate seal all such written proxies or other instruments as may be necessary
or proper to evidence the appointment of such attorneys and agents.