Exhibit 3-D
================================================================================
------------------------
MET-ED PREFERRED CAPITAL II, INC.
By-Laws
______________, 1998
------------------------
================================================================================
BY-LAWS
Offices
-------
1. The principal office of MET-ED PREFERRED CAPITAL II, INC.
(the "Corporation") shall be in 1013 Centre Road, Wilmington, DE 19805.
The Corporation may also have offices at such other places as the Board of
Directors may from time to time designate or the business of the Corporation may
require.
Seal
- ----
2. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization, and the words "Corporate Seal" and
"Delaware". If authorized by the Board of Directors, the corporate seal may be
affixed to any certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving, lithographing or
printing thereon such seal or a facsimile thereof, and such seal or facsimile
thereof so engraved, lithographed or printed thereon shall have the same force
and effect, for all purposes, as if such corporate seal had been affixed thereto
by indentation.
Stockholders' Meetings
- ----------------------
3. All meetings of stockholders shall be held at the principal office
of the Corporation or at such other place as shall be stated in the notice of
the meeting. Such meetings
shall be presided over by the chief executive officer of the Corporation, or, in
his absence, by such other officer as shall have been designated for the purpose
by the Board of Directors, except when by statute the election of a presiding
officer is required.
4. Annual meetings of stockholders shall be held during the month of
May in each year on such day and at such time as shall be determined by the
Board of Directors and specified in the notice of the meeting. At the annual
meeting, the stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be brought before the
meeting.
5. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the shares of stock of the
Corporation issued and outstanding and entitled to vote, present in person or by
proxy, shall be requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such shares of stock
shall not be present or represented by proxy at any such meeting, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power, by vote of the holders of a majority of the shares of capital stock
present or
-2-
represented at the meeting, to adjourn the meeting from time to time without
notice other than announcement at the meeting, until the holders of the amount
of stock requisite to constitute a quorum, as aforesaid, shall be present in
person or by proxy. At any adjourned meeting at which such quorum shall be
present, in person or by proxy, any business may be transacted which might have
been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record of shares of
capital stock then entitled to vote shall be entitled to vote in person, or by
proxy appointed by instrument executed in writing by such stockholders or by his
duly authorized attorney; but no proxy shall be valid after the expiration of
eleven months from the date of its execution unless the stockholder executing it
shall have specified therein the length of time it is to continue in force,
which shall be for some specified period. Except as otherwise provided by law or
by the Certificate of Incorporation, each holder of record of shares of capital
stock entitled to vote at any meeting of stockholders shall be entitled to one
vote for every share of capital stock standing in his name on the books of the
Corporation. Shares of capital stock of the Corporation belonging to the
Corporation or to a corporation if a majority of the shares entitled to vote in
the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes. All elections shall be determined by a plurality vote, and,
except as
-3-
otherwise provided by law or by the Certificate of Incorporation all other
matters shall be determined by a vote of the holders of a majority of the shares
of the capital stock present or represented at a meeting and voting on such
questions.
7. A complete list of the stockholders entitled to vote at any meeting
of stockholders, arranged in alphabetical order, with the residence of each, and
the number of shares held by each, shall be prepared by the Secretary and filed
in the principal office of the Corporation at least ten days before the meeting,
and shall be open to the examination of any stockholder at all times prior to
such meeting, during the usual hours for business, and shall be available at the
time and place of such meeting and open to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by law, may be called by the Chairman or by the
President, and shall be called by the chief executive officer or Secretary at
the request in writing of any three members of the Board of Directors, or at the
request in writing of holders of record of ten percent of the shares of capital
stock of the Corporation issued and outstanding. Business transacted at all
special meetings of the stockholders shall be confined to the purposes stated in
the call.
9. Notice of every meeting of stockholders, setting forth the time and
the place and briefly the purpose or purposes thereof, shall be mailed, not less
than ten nor more than sixty
-4-
days prior to such meeting, to each stockholder of record (at his address
appearing on the stock books of the Corporation, unless he shall have filed with
the Secretary of the Corporation a written request that notices intended for him
be mailed to some other address, in which case it shall be mailed to the address
designated in such request) as of a date fixed by the Board of Directors
pursuant to Section 41 of the By-Laws. Except as otherwise provided by law, the
Certificate of Incorporation or the By-Laws, items of business, in addition to
those specified in the notice of meeting, may be transacted at the annual
meeting.
Directors
- ---------
10. The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors, which shall consist of not less
than one nor more than nine directors as shall be fixed from time to time by a
resolution adopted by a majority of the entire Board of Directors; provided,
however, that no decrease in the number of directors constituting the entire
Board of Directors shall shorten the term of any incumbent director. Each
director shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at the annual
meeting of stockholders, or, if any such election shall not be held, at a
stockholders' meeting called and held in accordance with the provisions of the
General Corporation Law of the State of Delaware. Each director shall serve
until the next annual meeting of stockholders and thereafter until his successor
shall
-5-
have been elected and shall qualify or until his earlier death, resignation or
removal.
11. In addition to the powers and authority by the By-Laws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. No contract or transaction between the Corporation and one or more
of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more
of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his votes are counted for such purpose, if: (1)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (2) the
-6-
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board
of Directors or of a committee which authorizes the contract or transaction.
Meetings of the Board of Directors
- ----------------------------------
13. The first meeting of the Board of Directors, for the purpose of
organization, the election of officers, and the transaction of any other
business which may come before the meeting, shall be held on call of the
President within one week after the annual meeting of stockholders. If the
President shall fail to call such meeting, it may be called by the Vice
President or by any director. Notice of such meeting shall be given in the
manner prescribed for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be held without
notice except for the purpose of taking action on matters as to which notice is
in the By-Laws required to be given, at such time and place as shall from time
to time be designated by the Board, but in any event at intervals of not more
than three months. Special meetings of the Board of Directors may be called by
the President or in the absence or disability of the
-7-
President, by a Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item of business
may be transacted at any meeting of the Board of Directors, whether or not such
item of business shall have been specified in the notice of meeting. Where
notice of any meeting of the Board of Directors is required to be given by the
By-Laws, the Secretary or other officer performing his duties shall give notice
either personally or by telephone or telecopy at least twenty-four hours before
the meeting, or by mail at least three days before the meeting. Meetings may be
held at any time and place without notice if all the directors are present or if
those not present waive notice in writing either before or after the meeting.
16. At all meetings of the Board of Directors a majority of the
directors in office shall be requisite for, and shall constitute, a quorum for
the transaction of business, and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to any time or
place by a majority of the directors present at the
-8-
meeting, whether or not a quorum shall be present at such meeting, and no notice
of the adjourned meeting shall be required other than announcement at the
meeting.
Committees
----------
18. The Board of Directors may, by the vote of a majority of the
directors in office, create an Executive Committee, consisting of two or more
members, of whom one shall be the chief executive officer of the Corporation.
The other members of the Executive Committee shall be designated by the Board of
Directors from their number, shall hold office for such period as the Board of
Directors shall determine and may be removed at any time by the Board of
Directors. When a member of the Executive Committee ceases to be a director, he
shall cease to be a member of the Executive Committee. Except as otherwise
provided by applicable law, the Executive Committee shall have all the powers
specifically granted to it by the By-Laws and, between meetings of the Board of
Directors, may also exercise all the powers of the Board of Directors. The
Executive Committee shall have no power to revoke any action taken by the Board
of Directors, and shall be subject to any restriction imposed by law, by the
By-Laws, or by the Board of Directors.
19. The Executive Committee shall cause to be kept regular minutes of
its proceedings, which may be transcribed in the regular minute book of the
Corporation, and all such proceedings shall be reported to the Board of
Directors at its next succeeding meeting. A majority of the Executive Committee
shall
-9-
constitute a quorum at any meeting. The Board of Directors may by vote of a
majority of the total number of directors provided for in Section 10 of the
By-Laws fill any vacancies in the Executive Committee. The Executive Committee
shall designate one of its number as Chairman of the Executive Committee and
may, from time to time, prescribe rules and regulations for the calling and
conduct of meetings of the Committee, and other matters relating to its
procedure and the exercise of its powers.
20. From time to time the Board of Directors may appoint any other
committee or committees for any purpose or purposes, which committee or
committees shall have such powers and such tenure of office as shall be
specified in the resolution of appointment. The President of the Corporation
shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
-------------------------------------------
and Members of the Executive Committee
--------------------------------------
21. Directors, other than salaried officers of the Corporation or its
affiliates, shall receive compensation and benefits for their services as
directors, at such rate or under such conditions as shall be fixed from time to
time by the Board, and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special meeting of the Board
of Directors.
-10-
22. Directors, other than salaried officers of the Corporation or its
affiliates, who are members of any committee of the Board, shall receive
compensation for their services as such members as shall be fixed from time to
time by the Board, and all directors shall be reimbursed for their reasonable
expenses, if any, in attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties as members of
such Committees.
Officers
--------
23. The officers of the Corporation shall be chosen by a vote of a
majority of the directors in office and shall be a President and a Secretary
and, in the discretion of the Board of Directors, one or more Vice Presidents, a
Treasurer, and a Comptroller, one or more Assistant Secretaries, one or more
Assistant Treasurers, and one or more Assistant Comptrollers. The President
shall be the chief executive officer of the Corporation. The President shall be
chosen from among the directors. Any two or more offices may be occupied and the
duties thereof may be performed by one person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
24. The salary and other compensation of the chief executive officer of
the Corporation shall be determined from time to time by the Board of Directors.
The salaries and other compensation of all other officers of the Corporation
shall be determined from time to time by the President.
-11-
25. The salary or other compensation of all employees other than
officers of the Corporation shall be fixed by the President of the Corporation
or by such other officer as shall be designated for that purpose by the Board of
Directors.
26. The Board of Directors may appoint such officers and such
representatives or agents as shall be deemed necessary, who shall hold office
for such terms, exercise such powers, and perform such duties as shall be
determined from time to time by the Board of Directors.
27. The officers of the Corporation shall hold office until the first
meeting of the Board of Directors after the next succeeding annual meeting of
stockholders and until their respective successors are chosen and qualify or
until their earlier death, resignation or removal. Any officer elected pursuant
to Section 23 of the By-Laws may be removed at any time, with or without cause,
by the vote of a majority of the directors in office. Any other officer and any
representative, employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by the Executive
Committee, or the President of the Corporation, or such other officer as shall
have been designated for that purpose by the President of the Corporation.
The President
-------------
28. (a) The President shall preside at all meetings of the Board at
which he shall be present.
-12-
(b) The President of the Corporation:
(i) shall have supervision,
direction and control of the conduct of the business
of the Corporation, subject, however, to the control
of the Board of Directors and the Executive
Committee if there be one;
(ii) may sign in the name and on
behalf of the Corporation any and all contracts,
agreements or other instruments pertaining to
matters which arise in the ordinary course of
business of the Corporation, and, when authorized by
the Board of Directors or the Executive Committee,
if there be one, may sign in the name and on behalf
of the Corporation any and all contracts,
agreements, or other instruments of any nature
pertaining to the business of the Corporation;
(iii) may, unless otherwise directed
by the Board of Directors pursuant to Section 37 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf of
the Corporation at all meetings of the stockholders
of any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
-13-
(iv) shall, whenever it may in his
opinion be necessary or appropriate, prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(v) shall have such other powers and
perform such other duties as may be prescribed from
time to time by law, by the By-Laws, or by the Board
of Directors.
Vice President
--------------
29. (a) The Vice President shall, in the absence or disability of the
President, have supervision, direction and control of the conduct of the
business of the Corporation, subject, however, to the control of the Directors
and the Executive Committee, if there be one.
(b) He may sign in the name of and on behalf of the Corporation any
and all contracts, agreements or other instruments pertaining to matters which
arise in the ordinary course of business of the Corporation, and when authorized
by the Board of Directors or the Executive Committee, if there be one, except in
cases where the signing thereof shall be expressly delegated by the Board of
Directors or the Executive Committee to some other officer or agent of the
Corporation.
(c) He may, at the request or in the absence or disability of the
President or in case of the failure of the
-14-
President to appoint a substitute or proxy as provided in Subsection 28(b)(iii)
of the By-Laws, unless otherwise directed by the Board of Directors pursuant to
Section 37 of the By-Laws, attend in person or by substitute or proxy appointed
by him and act and vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds stock and grant
any consent, waiver or power of attorney in respect of such stock.
(d) He shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-Laws, or by the
Board of Directors.
(e) If there be more than one Vice President, the Board of
Directors may designate one or more of such Vice Presidents as an Executive Vice
President or a Senior Vice President. The Board of Directors may assign to such
Vice Presidents their respective duties and may designate the order in which the
respective Vice Presidents shall have supervision, direction and control of the
business of the Corporation in the absence or disability of the President.
The Secretary
-------------
30. (a) The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in books to be kept for that purpose; and he shall
perform like duties for the Executive Committee and any other committees created
by the
-15-
Board of Directors.
(b) He shall give, or cause to be given, notice of all
meetings of the stockholders, the Board of Directors, or the Executive Committee
or any other committee of the Board of Directors of which notice is required to
be given by law or by the By-Laws.
(c) He shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-Laws, or the
Board of Directors.
(d) Any records kept by the Secretary shall be the property of
the Corporation and shall be restored to the Corporation in case of his death,
resignation, retirement or removal from office.
(e) He shall be the custodian of the seal of the Corporation
and, pursuant to Section 44 of the By-Laws and in other instances where the
execution of documents on behalf of the Corporation is authorized by the By-Laws
or by the Board of Directors, may affix the seal to all instruments requiring it
and attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger, stock
certificate book and all books containing minutes of any meeting of the
stockholders, Board of Directors, or Executive Committee
-16-
or other committee created by the Board of Directors, and of all formal records
and documents relating to the corporate affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretaries shall assist
the Secretary in the performance of his duties, shall exercise his powers and
duties at his request or in his absence or disability, and shall exercise such
other powers and duties as may be prescribed by the Board of Directors.
The Treasurer
-------------
31. (a) The Treasurer shall be responsible for the safekeeping of the
corporate funds and securities of the Corporation, and shall maintain and keep
in his custody full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other funds of
the Corporation in the name and to the credit of the Corporation, in such
depositories as may be designated by the Board of Directors.
(b) He shall disburse the funds of the Corporation in such manner
as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements.
(c) Pursuant to Section 44 of the By-Laws, he may, when authorized
by the Board of Directors, affix the seal to all instruments requiring it and
shall attest the ensealing and execution of said instruments.
-17-
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the
office of Treasurer, and shall have other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
-18-
(h) Any Assistant Treasurer or Assistant Treasurers shall assist
the Treasurer in the performance of his duties, shall exercise his powers and
duties at his request or in his absence or disability, and shall exercise such
other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall give the
Corporation a bond, the premium on which shall be paid by the Corporation,
similar to that which may be required to be given by the Treasurer.
Comptroller
-----------
32. (a) The Comptroller of the Corporation shall be the principal
accounting officer of the Corporation and shall be accountable and report
directly to the Board of Directors. If required by the Board of Directors, the
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation in such form and amount and with such surety or sureties
as shall be satisfactory to the Board, for the faithful performance of the
duties of his office.
(b) He shall keep or cause to be kept full and complete books of
account of all operations of the Corporation and of its assets and liabilities.
(c) He shall have custody of all accounting records of the
Corporation other than the record of receipts and disbursements and those
relating to the deposit or custody of money or
-19-
securities of the Corporation, which shall be in the custody of the Treasurer.
(d) He shall exhibit at all reasonable times his books of
account and records to any director of the Corporation upon application during
business hours at the office of the Corporation where such books of account and
records are kept.
(e) He shall render reports of the operations and business and
of the condition of the finances of the Corporation at regular meetings of the
Board of Directors, and at such other times as he may be requested by the Board
or any director of the Corporation, and shall render a full financial report at
the annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an original copy
of each written contract made by or on behalf of the Corporation.
(g) He shall receive periodic reports from the Treasurer of
the Corporation of all receipts and disbursements, and shall see that correct
vouchers are taken for all disbursements for any purpose.
(h) He shall perform all duties generally incident to the
office of Comptroller, and shall have such other powers and duties as from time
to time may be prescribed by law, by the By-Laws, or by the Board of Directors.
-20-
(i) Any Assistant Comptroller or Assistant Comptrollers shall
assist the Comptroller in the performance of his duties, shall exercise his
powers and duties at his request or in his absence or disability and shall
exercise such other powers and duties as may be conferred or required by the
Board of Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation, similar to that which may be required to be given by
the Comptroller.
Vacancies
---------
33. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have specified the filling of such vacancy as one of its
purposes may choose a successor, who shall hold office for the unexpired term in
respect of which such vacancy occurs. If the office of any officer of the
Corporation shall become vacant for any reason, the Board of Directors, at a
meeting, the notice of which shall have specified the filling of such vacancy as
one of its purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Pending action by the
Board of Directors at such meeting, the Board of Directors or the Executive
Committee may choose a successor temporarily to serve as an officer of the
Corporation.
-21-
Resignations
------------
34. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. Nothing herein shall be deemed to relieve any officer from
liability for breach of any contract of employment resulting from any such
resignation.
Duties of Officers May be Delegated
-----------------------------------
35. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 10 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
Indemnification of Directors, Officers and Employees
----------------------------------------------------
36. (a) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Corporation or otherwise ("proceeding"), by reason of the fact that
he was a director, officer or employee of the Corporation (and may indemnify any
person who was an agent of the
-22-
Corporation), or a person serving at the request of the Corporation as a
director, officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, to
the fullest extent permitted by law, including without limitation
indemnification against expenses (including attorneys' fees and disbursements),
damages, punitive damages, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding to the fullest extent permitted by applicable law.
(b) The Corporation shall pay the expenses (including
attorneys' fees and disbursements) actually and reasonably incurred in defending
a proceeding on behalf of any person entitled to indemnification under
subsection (a) in advance of the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation, and may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such person to make
such repayment shall not be a prerequisite to the making of an advance.
(c) For purposes of this Section: (i) the Corporation shall be
deemed to have requested an officer, director, employee or agent to serve as
fiduciary with respect to an employee benefit plan where the performance by such
person of duties to
-23-
the Corporation also imposes duties on, or otherwise involves services by, such
person as a fiduciary with respect to the plan; (ii) excise taxes assessed with
respect to any transaction with an employee benefit plan shall be deemed
"fines"; and (iii) action taken or omitted by such person with respect to any
employee benefit plan in the performance of duties for a purpose reasonably
believed to be in the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the best interests
of the Corporation.
(d) To further effect, satisfy or secure the indemnification
obligations provided herein or otherwise, the Corporation may maintain
insurance, obtain a letter of credit, act as self-insurer, create a reserve,
trust, escrow, cash collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or arrangement
whatsoever in such amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate.
(e) All rights of indemnification under this Section shall be
deemed a contract between the Corporation and the person entitled to
indemnification under this Section pursuant to which the Corporation and each
such person intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not limit, but may expand, any rights
or
-24-
obligations in respect of any proceeding whether commenced prior to or after
such change to the extent such proceeding pertains to actions or failures to act
occurring prior to such change.
(f) The indemnification, as authorized by this Section, shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of shareholder, or disinterested directors or otherwise, both as
to action in an official capacity and as to action in any other capacity while
holding such office. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section shall continue as to a person who has
ceased to be an officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the heirs,
executors and administrators of such person.
Stock of Other Corporations
---------------------------
37. The Board of Directors may authorize any director, officer or other
person on behalf of the Corporation to attend, act and vote at meetings of the
stockholders of any corporation in which the Corporation shall hold stock, and
to exercise thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such meetings and
calls therefor.
-25-
Certificate of Stock
--------------------
38. The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and may include his address. No
fractional shares of stock shall be issued. Certificates of stock shall be
signed by the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, and shall be sealed with
the seal of the Corporation. Where any certificate of stock is signed by a
transfer agent or transfer clerk, who may be but need not be an officer or
employee of the Corporation, and by a registrar, the signature of any such
President, Vice President, Secretary, Assistant Secretary, Treasurer, or
Assistant Treasurer upon such certificate who shall have ceased to be such
before such certificate of stock is issued, it may be issued by the Corporation
with the same effect as if such officer had not ceased to be such at the date of
its issue.
Transfer of Stock
-----------------
39. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate or by attorney, lawfully constituted
in writing, and upon surrender of the certificate therefor.
Fixing of Record Date
---------------------
40. The Board of Directors is hereby authorized to fix a time, not
exceeding fifty (50) days preceding the date of any
-26-
meeting of stockholders or the date fixed for the payment of any dividend or the
making of any distribution, or for the delivery of evidences of rights or
evidences of interests arising out of any change, conversion or exchange of
capital stock, as a record time for the determination of the stockholders
entitled to notice of and to vote at such meeting or entitled to receive any
such dividend, distribution, rights or interests as the case may be; and all
persons who are holders of record of capital stock at the time so fixed and no
others, shall be entitled to notice of and to vote at such meeting, and only
stockholders of record at such time shall be entitled to receive any such
notice, dividend, distribution, rights or interests.
Registered Stockholders
-----------------------
41. The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of the State of
Delaware.
Lost Certificates
-----------------
42. Any person claiming a certificate of stock to be lost or destroyed
shall make an affidavit or affirmation of that fact, whereupon a new certificate
may be issued of the same tenor and for the same number of shares as the one
alleged to be lost or destroyed; provided, however, that the Board of Directors
may
-27-
require, as a condition to the issuance of a new certificate, the payment of the
reasonable expenses of such issuance or the furnishing of a bond of indemnity in
such form and amount and with such surety or sureties, or without surety, as the
Board of Directors shall determine, or both the payment of such expenses and the
furnishing of such bond, and may also require the advertisement of such loss in
such manner as the Board of Directors may prescribe.
Inspection of Books
-------------------
43. The Board of Directors may determine whether and to what extent,
and at what time the places and under what conditions and regulations, the
accounts and books of the Corporation (other than the books required by statute
to be open to the inspection of stockholders), or any of them, shall be open to
the inspection of stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as such right
may be conferred by statutes of the State of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
------------------------------------------
44. (a) All checks or demands for money and notes of the Corporation
shall be signed by such person or persons (who may but need not be an officer of
officers of the Corporation) as the Board of Directors may from time to time
designate, either directly or through such officers of the Corporation as shall,
by resolution of the Board of Directors, be authorized to designate
-28-
such person or persons. If authorized by the Board of Directors, the signatures
of such persons, or any of them, upon any checks for the payment of money may be
made by engraving, lithographing or printing thereon a facsimile of such
signatures, in lieu of actual signatures, and such facsimile signatures so
engraved, lithographed or printed thereon shall have the same force and effect
as if such persons had actually signed the same.
(b) All bonds, mortgages and other instruments requiring a
seal, when required in connection with matters which arise in the ordinary
course of business or when authorized by the Board of Directors, shall be
executed on behalf of the Corporation by the President or a Vice President, and
the seal of the Corporation shall be thereupon affixed by the Secretary or an
Assistant Secretary, who shall, when required, attest the ensealing and
execution of said instrument. If authorized by the Board of Directors, a
facsimile of the seal may be employed and such facsimile of the seal may be
engraved, lithographed or printed and shall have the same force and effect as an
impressed seal. If authorized by the Board of Directors, the signatures of the
President or a Vice President and the Secretary or an Assistant Secretary upon
any engraved, lithographed or printed bonds, debentures, notes or other
instruments may be made by engraving, lithographing or printing thereon a
facsimile of such signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall have the same
force and effect as if such officers had actually signed the same. In case any
officer who has signed, or whose
-29-
facsimile signature appears on, any such bonds, debentures, notes or other
instruments shall cease to be such officer before such bonds, debentures, notes
or other instruments shall have been delivered by the Corporation, such bonds,
debentures, notes or other instruments may nevertheless be adopted by the
Corporation and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not ceased to be such
officer of the Corporation.
Receipts for Securities
-----------------------
45. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
Fiscal Year
-----------
46. The fiscal year shall begin the first day of January in each year.
Dividends
47. (a) Dividends in the form of cash or securities, upon the capital
stock of the Corporation, to the extent permitted by law may be declared by the
Board of Directors at any regular or special meeting.
(b) The Board of Directors shall have power to fix and determine,
and from time to time to vary, the amount to be reserved as working capital; to
determine whether any, and if
-30-
any, what part of any, surplus of the Corporation shall be declared as
dividends; to determine the date or dates for the declaration and payment or
distribution of dividends; and, before payment of any dividend or the making of
any distribution to set aside out of the surplus of the Corporation such amount
or amounts as the Board of Directors from time to time, in its absolute
discretion, may think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for such other purpose as it shall deem to be in the
interest of the Corporation.
Directors' Annual Statement
---------------------------
48. The Board of Directors shall upon request present or cause to be
presented at each annual meeting of stockholders, and when called for by vote of
the stockholders at any special meeting of the stockholders, a full and clear
statement of the business and condition of the Corporation.
Notices
-------
49. (a) Whenever under the provisions of the By-Laws notice is required
to be given to any director, officer of stockholder, it shall not be construed
to require personal notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of the same in the
U.S. mail, postage prepaid, addressed to such stockholder, officer or director,
at his address as the same appears on the books of the Corporation.
-31-
(b) A stockholder, director or officer may waive in writing
any notice required to be given to him by law or by the By-Laws.
Participation in Meetings by Telephone
--------------------------------------
50. At any meeting of the Board of Directors or the Executive Committee
or any other committee designated by the Board of Directors, one or more
directors may participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to hear and
speak.
Oath of Judges of Election
--------------------------
51. The judges of election appointed to act at any meeting of the
stockholders shall, before entering upon the discharge of their duties, be sworn
faithfully to execute the duties of judge at such meeting with strict
impartiality and according to the best of their ability.
Amendments
----------
52. The By-Laws may be altered or amended by the affirmative vote of
the holders of a majority of the capital stock represented and entitled to vote
at a meeting of the stockholders duly held, provided that the notice of such
meeting shall have included notice of such proposed amendment. The By-Laws may
also be altered or amended by the affirmative vote of a majority of the
directors in office at a meeting of the Board of
-32-
Directors, the notice of which shall have included notice of the proposed
amendment. In the event of the adoption, amendment, or repeal of any By-Law by
the Board of Directors pursuant to this Section, there shall be set forth in the
notice of the next meeting of stockholders for the election of directors the
By-Law so adopted, amended, or repealed together with a concise statement of the
changes made. By the affirmative vote of the holders of a majority of the
capital stock represented and entitled to vote at such meeting, the By-Laws may,
without further notice, be altered or amended by amending or repealing such
action by the Board of Directors.