As amended through 11/03/94
ORANGE AND ROCKLAND UTILITIES, INC.
(New York)
BY-LAWS
ARTICLE ONE
OFFICES
SECTION 1.1. Corporation's Office in New York; Mailing
Address for Service of Process. The location of the Corporation's
office within the State of New York, and the post office address to
which the Secretary of State of the State of New York shall mail a
copy of process in any action or proceeding against the Corporation
that may be served upon him, shall be in each case as stated in the
Certificate of Incorporation.
ARTICLE TWO
SHAREHOLDERS MEETINGS
SECTION 2.1. Annual Meetings. An annual meeting of
shareholders to elect directors and transact such other business as
may properly be presented to the meeting shall be held on the second
Wednesday in April of each year or if that day is a legal holiday in
the jurisdiction in which the meeting is to be held then on the next
following day not a legal holiday.
SECTION 2.2. Special Meetings. A special meeting of
shareholders may be called at any time and for any purpose by the
Board of Directors, its Chairman or the President and shall be called
by the Secretary upon receipt of a written request to do so
specifying the matter or matters, appropriate for action at a special
meeting, proposed to be presented to the meeting and signed by
holders of record of an aggregate of not less than one-fourth of the
shares outstanding and entitled to act on such matter or matters on
the date of receipt of such request. At any such special meeting
only such business may be transacted as is related to the purpose or
purposes set forth in the notice required by Section 2.4.
SECTION 2.3. Place of Meetings. Each annual meeting shall be
held at such place, within or without the State of New York, as the
Board of Directors, its Chairman or the President shall fix. Each
special meeting shall be held at such place, within or without the
State of New York, as the person or persons calling the meeting shall
fix. If no place shall be so fixed, the meeting shall be held at the
offices of the Corporation in the State of New York.
SECTION 2.4. Notice of Meetings. (a) Written notice of a
meeting of shareholders shall be given, personally or by mail, not
less than ten nor more than fifty days before the meeting to each
shareholder entitled to vote at such meeting; such notice shall state
the date, place and hour of the meeting and, unless it is the annual
meeting, shall indicate that it is being issued by or at the
direction of the person or persons calling the meeting. Notice of a
special meeting shall also state the purpose or purposes for which
the meeting is called. If mailed, such notice is given when
deposited in the United States mail, with postage thereon prepaid,
directed to each shareholder at his address as it appears on the
record of shareholders, or, if he shall have duly filed with the
Secretary a written request that notices to him be mailed to some
other address, then directed to him at such other address.
(b) When a meeting is adjourned to another time or place, it
shall not be necessary to give any notice of the adjourned meeting if
the time and place to which the meeting is adjourned are announced at
the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been
transacted on the original date of the meeting. However, if after
adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each shareholder of record on the new record date who is entitled
to notice under paragraph (a) of this Section 2.4.
SECTION 2.5. Waiver of Notice. Notice of a meeting need not
be given to any shareholder who submits a signed waiver of notice, in
person or by proxy, whether before or after the meeting. The
attendance of any shareholder at a meeting, in person or by proxy,
without protesting prior to the conclusion of the meeting the lack of
notice of such meeting, shall constitute a waiver of notice by him.
SECTION 2.6. Quorum. Except as otherwise required by law or
the Certificate of Incorporation, the holders of record of a majority
of the shares entitled to be voted present in person or represented
by proxy at a meeting shall be necessary and sufficient to constitute
a quorum for the transaction of business at the meeting, but in the
absence of a quorum the holders of record present or represented by
proxy at such meeting may vote to adjourn the meeting from time to
time. A quorum once present to organize a meeting is not broken by
the subsequent withdrawal of any shareholders.
SECTION 2.7. Presiding Officer and Secretary at Meetings.
Each shareholders' meeting shall be presided over by the Chairman of
the Board of Directors or in his absence by the Vice Chairman of the
Board of Directors, if any, or in the absence of both of them by the
President, or if none of them is present by the person designated in
writing by the Chairman of the Board of Directors, or if no person is
so designated, then a chairman of the meeting shall be chosen by the
meeting by a plurality vote. The Secretary or in his absence an
Assistant Secretary shall act as secretary of the meeting, or if no
such officer is present a secretary of the meeting shall be
designated by the person presiding at the meeting.
SECTION 2.8. Voting. Except as otherwise required by law or
the Certificate of Incorporation:
(a) each shareholder of record shall be entitled at every
meeting of shareholders to one vote in person or by proxy for each
share standing in his name on the record of shareholders;
(b) directors shall be elected by a plurality vote;
(c) each other matter properly presented to any meeting shall
be decided by a majority of the votes cast on the matter.
SECTION 2.9. Proxies. Every proxy must be executed in writing
by the shareholder or by his attorney-in-fact. No proxy shall be
valid after the expiration of eleven months from the date thereof,
unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the shareholder executing it, except in
those cases where an irrevocable proxy is expressly stated to be
given and is permitted by law.
Section 2.10. Inspectors of Election. At any meeting for the
election of directors, the presiding officer shall appoint two
inspectors of election to serve at such meeting. The inspectors
shall be sworn to execute their duties with strict impartiality and
according to the best of their ability.
Section 2.11. Record Date. (a) For the purpose of
determining the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or to express
consent to or dissent from any proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of
any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders. Such
date shall not be more than fifty nor less than ten days before the
date of the meeting, nor more than fifty days prior to any other
action.
(b) When a determination of shareholders of record entitled to
notice of or to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any
adjournment thereof, unless the Board of Directors shall fix a new
record date under this section for the adjourned meeting.
ARTICLE THREE
DIRECTORS
SECTION 3.1. Number; Term of Office. The business of the
Corporation shall be managed under the direction of the Board of
Directors. The Board of Directors shall consist of not less than
7(1) or more than 15 persons, the exact number (i) to be 12 persons
upon adoption of this Section 3.1, subject to change exclusively by
the Board of Directors as provided in this Section 3.1, and (ii) if
to be changed from 12 persons to some other number not less than 7 or
more than 15 persons subsequent to the adoption of this Section 3.1,
to be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors from time to time (whether or not there exist
any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board for adoption). At the
annual meeting of the shareholders of the Corporation at which this
Section 3.1 is adopted, the directors shall be classified into three
classes, as nearly equal in number as possible, with the term of
office of the first class to expire at the 1988 annual meeting of
shareholders, the term of office of the second class to expire at the
1989 annual meeting of shareholders and the term of office of the
third class to expire at the 1990 annual meeting of shareholders. At
each annual meeting of the shareholders of the Corporation following
the annual meeting of the shareholders at which this Section 3.1 is
adopted, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their election.
SECTION 3.2. Resignation; Removal. Any director of the
Corporation may resign at any time either by oral tender of
resignation at any meeting of the Board of Directors or by giving
written notice thereof to the Corporation. Such resignation shall
take effect at the time specified therefor, and unless otherwise
specified with respect thereto the acceptance of such resignation
shall not be necessary to make it effective. Subject to the rights
of the holders of any class or series of Preferred Stock having
preference over the Common Stock as to dividends or upon liquidation
to elect directors under specified circumstances, any director or
directors, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80 percent of the combined voting
power of all of the then-outstanding shares of stock of all classes
and series of the Corporation entitled to vote generally (the "Voting
Stock"), voting together as a single class (it being understood that,
for all purposes of these By-Laws, each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article
SECOND of the Certificate of Incorporation or any designation of the
rights, powers and preferences of any class or series of the
Preferred Stock of the Corporation made pursuant to said Article
SECOND (a "Preferred Stock Designation")). The Corporation must
notify the director of the grounds of his impending removal and the
director shall have an opportunity, at the expense of the
Corporation, to present his defense to the shareholders by a
__________
(1) Section 704(a) of the NYBCL requires a minimum of three Directors per class
on a staggered board. The minimum number of Directors for O&R is nine.
statement which accompanies or precedes the Corporation's
solicitation of proxies to remove him. The term "entire Board of
Directors" as used in these By-Laws means the total number of
directors which the Corporation would have if there were no
vacancies.
SECTION 3.3. Vacancies. Except as otherwise fixed pursuant to
the provisions of Article SECOND of the Certificate of Incorporation
elating to the rights of the holders of any class or series of
Preferred Stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified
circumstances, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in
the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, even though
less than a quorum of the Board of Directors, acting at a regular or
special meeting. Any director elected in accordance with the
preceding sentence shall hold office until the next annual meeting of
shareholders at which the election of directors is in the regular
order of business and until his successor has been elected and
qualified. No decrease in the authorized number of directors
constituting the entire Board of Directors shall shorten the term of
any incumbent director.
SECTION 3.4 Qualifications. Each of the directors shall be at
least 18 years of age. Each director elected to the Board of
Directors pursuant to the provisions of Section 3.1 or Section 3.3
shall not be 70 years of age or older upon election, except those
directors elected on or before April 11, 1990 and who are 60 years of
age or older on such date shall not be 75 years of age or older upon
election. The directors need not be shareholders of the Corporation.
SECTION 3.5. Regular and Annual Meetings; Notice. Regular
meetings of the Board of Directors shall be held at such time and at
such place, within or without the State of New York, as the Board of
Directors may from time to time prescribe. No notice need be given
of any regular meeting and a notice, if given, need not specify the
purposes thereof. A meeting of the Board of Directors may be held
without notice immediately after an annual meeting of shareholders at
the same place as that at which such meeting was held.
SECTION 3.6. Special Meetings; Notice. A special meeting of
the Board of Directors may be called at any time by the Board of
Directors or its Chairman and shall be called by the Board of
Directors, its Chairman or the Secretary upon receipt of a written
request to do so specifying the matter or matters, appropriate for
action at such a meeting, proposed to be presented at the meeting and
signed by at least two directors. Any such meeting shall be held at
such time and at such place, within the State of New York (or without
the State of New York if the Chairman of the Board of Directors shall
so direct), as shall be stated in the request or as shall be
determined by the body or person calling such meeting. Notice of
such meeting stating the time and place thereof shall be given (a) by
deposit of the notice in the mails (first class, postage prepaid) at
least two days before the day fixed for the meeting addressed to each
director at his address as it appears on the Corporation's records or
at such other address as the director may have furnished the
Corporation for that purpose, or (b) by dispatch of the notice
similarly addressed by telegraph, telex, cable or other electronic
means of communication or by delivery of such notice by telephone or
in person, in each case at least 24 hours before the time fixed for
the meeting.
SECTION 3.7. Waiver of Notice. Notice of a meeting of the
Board of Directors or of any committee thereof need not be given to
any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting,
prior thereto or at its commencement, the lack of notice to him.
*SECTION 3.8. Chairman of the Board; Presiding Officer and
Secretary at Meetings. The Board of Directors at its first meeting
following the annual meeting of shareholders in each year may elect
one of its members to serve at its pleasure as Chairman of the Board.
The Chairman of the Board may but need not be an officer of or
employed in an executive or any other capacity by the corporation.
Each meeting of the Board of Directors shall be presided over by the
Chairman of the Board or in his absence by the Vice Chairman of the
Board, if any, or if neither is present by such member of the Board
of Directors as shall be chosen by the meeting. The Secretary or in
his absence an Assistant Secretary shall act as secretary of the
meeting, or if no such officer is present, a secretary of the meeting
shall be designated by the person presiding at the meeting.
The Chairman of the Board of Directors shall preside at all meetings
of the shareholders, and shall have such further powers and duties as
may be conferred by the Board of Directors.
SECTION 3.9. Quorum; Voting. A majority of the whole Board of
Directors shall constitute a quorum for the transaction of business,
but in the absence of a quorum a majority of those present (or if
only one be present, then that one) may adjourn the meeting, without
notice other than announcement at the meeting, until such time as a
quorum is present. In the absence of any such announcement notice of
any adjournment shall be given in accordance with the provisions of
Section 3.6.
SECTION 3.10. Meeting by Telephone. At the direction of the
Chairman of the Board of Directors, members of the Board of Directors
or of any committee thereof may participate in meetings of the Board
of Directors or of such committee by means of conference telephone or
__________
* Amended 7/14/94
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
SECTION 3.11. Action Without Meeting. 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 of Directors or of such 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 of such
committee.
SECTION 3.12. Compensation. A director shall receive such
compensation, if any, for his services as a director or as a member
of any committee of the Board of Directors as may from time to time
be fixed by the Board of Directors, which compensation may be based,
in whole or in part, upon his attendance at meetings of the Board of
Directors or of its committees. He may also be reimbursed for his
expenses in attending any meeting.
SECTION 3.13. Executive Committee. (a) The Board of
Directors, at its first meeting following the annual meeting of
shareholders in each year, may, by resolution adopted by a majority
of the entire Board of Directors, appoint an Executive Committee of
the Board of Directors to consist of the Chairman of the Board of
Directors and two or more additional directors as the Board of
Directors may from time to time determine. The Executive Committee
shall have, and may exercise during the intervals between the
meetings of the Board of Directors, all the powers vested in the
Board of Directors, except that the Executive Committee shall not
have authority as to any of the following matters: the declaration
of dividends; the submission to shareholders of any action as to
which shareholder action is required by law; the filling of vacancies
on the Board of Directors or on any committee thereof; the fixing of
compensation of any director for serving on the Board of Directors or
on any committee thereof; the amendment or repeal of these By-Laws or
the adoption of new By-Laws; and the amendment or repeal of any
resolution of the Board of Directors which by its terms shall not be
so amendable or repealable.
(b) The members of the Executive Committee shall serve at the
pleasure of the Board of Directors. The Board of Directors shall
designate the Chairman of the Executive Committee and fix the
compensation, if any, for his service in such capacity.
(c) Three members of the Executive Committee shall constitute
a quorum.
(d) Meetings of the Executive Committee may be called by the
Chairman of the Executive Committee and shall be called by the
Chairman of the Executive Committee upon receipt of a written request
to do so specifying the matter or matters, appropriate for action at
such a meeting, proposed to be presented at the meeting and signed by
at least two members of the Executive Committee.
(e) The Executive Committee shall serve as the Nominating
Committee of the Board of Directors and, in such capacity, when
vacancies in the Board of Directors occur, shall evaluate candidates
and aid the Board of Directors in attracting qualified candidates to
fill such vacancies.
* SECTION 3.14. Audit Committee. (a) The Board of Directors at
its first meeting following the annual meeting of shareholders in
each year, may, by resolution adopted by a majority of the entire
Board of Directors, appoint an Audit Committee of the Board of
Directors to consist of three or more directors (none of whom shall
be officers of the Corporation) as the Board of Directors may from
time to time determine. In order to bring a fresh perspective to the
Audit Committee, members should be rotated periodically. The Board
of Directors will select a member to be chairperson.
(b) The Audit Committee as a committee of the Board of
Directors is primarily responsible to assist the Board of Directors
in fulfilling its oversight responsibilities by reviewing the
financial information which will be provided to the shareholders and
others, the systems of internal controls which management and the
Board of Directors has established, and the audit process. The Audit
Committee shall have adequate resources to discharge its
responsibilities. The Audit Committee shall have the following
specific duties and functions and such other duties and functions as
from time to time may be prescribed by the Board of Directors:
(i) Provide an open avenue of communication between the
internal auditors, the independent accountant, and the
Board of Directors.
(ii) Periodically review and update the Audit Committee's
charter and the charter of the internal audit
department.
(iii) Review management's plans for engaging the independent
accountant to perform management advisory services, and
projected fees, to satisfy itself that the independence
of the auditor is protected.
(iv) Recommend to the Board of Directors the independent
accountants to be nominated, approve the compensation
of the independent accountant, and review and approve
the discharge of the independent accountant.
(v) Review and concur in the appointment, replacement,
reassignment, or dismissal of the manager of internal
auditing.
(vi) Confirm and assure the independence of the internal
auditors and the independent accountant.
__________
* Amended 6/23/94
(vii) Inquire of management, the manager of internal
auditing, and the independent accountant about the
process each performs to assess significant risks or
exposures and evaluate the steps management has taken
to minimize such risks to the Corporation.
(viii) Consider, in consultation with the independent
accountant and the manager of internal auditing, the
audit scope and plan of the internal auditors and the
independent accountant to ensure coverage is
appropriate and the extent to which such plans can be
relied upon to detect fraud or weaknesses in controls.
The Audit Committee shall formally approve the audit
plan of the internal audit department.
(ix) Review with the manager of internal auditing and
independent accountant the coordination of the audit
effort to assure completeness of coverage, reduction of
redundant efforts, and the effective use of the audit
resources.
(x) Consider and review with the independent accountant and
the manager of internal auditing:
1. Their assessment of the adequacy of the
Corporation's internal controls, including
computerized information system controls and
security.
2. Any related significant findings and
recommendations of the independent accountant and
internal auditing, together with management's
responses thereto.
(xi) Review with management and the independent accountant
at the completion of the annual examination:
1. The Corporation's annual financial statements,
related footnotes for completeness and
appropriateness of accounting principles.
2. The independent accountant's audit of the
Corporation's various financial statements and the
reports thereon.
3. Any significant changes required in the independent
accountant's audit plan.
4. Any serious difficulties or disputes with
management encountered during the course of the
audit and how they were resolved.
5. Other matters related to the conduct of the audit
which are to be communicated to the Audit Committee
under generally accepted auditing standards.
(xii) Consider and review with management and the manager of
internal auditing:
1. Significant findings resulting from internal
audits.
2. Any difficulties encountered by the internal audit
department in the course of its audits, including
any restrictions on the scope of work or access to
required information.
3. The internal audit department budget and staffing.
4. The internal audit department charter.
(xiii) Review interim filings with the Securities and Exchange
Commission and other published documents containing the
Corporation's financial statements.
(xiv) Review policies and procedures with respect to
officers' expense accounts and perquisites, including
their use of corporate assets, and consider the results
of any review of these areas by internal auditing or
the independent accountant.
(xv) Review with the manager of internal auditing and the
independent accountant the results of their review of
the Corporation's monitoring of compliance with the
Corporation's code of conduct. The Audit Committee
shall ensure that appropriate action is taken in cases
of significant violations of such code.
(xvi) Meet with the manager of internal auditing, the
independent accountant, and management in separate
executive sessions to discuss any matters that the
Audit Committee or these groups believe should be
discussed privately with the Audit Committee. The
Audit Committee should also meet periodically in
executive session to assess management's effectiveness
and to assess the performance of the internal audit
department.
(xvii) Report Audit Committee actions to the Board of
Directors with such recommendations as the
Audit Committee may deem appropriate.
(xviii) The Audit Committee shall have the power to conduct or
authorize investigations into any matters within the
Audit Committee's scope of responsibilities. The Audit
Committee shall be empowered to retain independent
counsel, accountants, or others to assist it in the
conduct of any investigation.
(xix) The Audit Committee shall meet at least four times a
year, or more frequently as circumstances require. The
Audit Committee shall meet separately in executive
session with the independent accountant and the manager
of internal auditing at each meeting. Minutes of the
meetings shall be prepared and filed with the records
of the Corporation. Three or more members shall
constitute a quorum for the purpose of conducting Audit
Committee functions.
*(c) The Audit Committee shall have the following
responsibilities and duties with regard to the Company's ethics
program, as approved and endorsed by the Board of Directors
(the "Ethics Program"):
(i) Provide oversight and direction with regard to
the Company's Ethics Program and to the ethics officer
(the "Ethics Officer") appointed pursuant thereto in a
manner that insures that the Company will operate in
accordance with ethical principles;
(ii) Receive reports at least quarterly from the
Ethics Officer detailing the status of ethics
initiatives, investigations, disciplinary procedures,
compliance efforts and other related activities;
(iii) Report to the entire Board of Directors on a
periodic basis regarding the operation of the Company's
Ethics Program and on matters related thereto deemed by
the Committee to be of interest and significance to the
Board;
(iv) Review, determine and recommend to the entire
Board of Directors, the action(s), if any, beyond those
undertaken by the Ethics Officer, that are necessary to
satisfactorily resolve any reported violations of the
Company's Ethics Program;
(v) Be available, through the Ethics Officer, as an
avenue for employees, vendors and others to express
concerns regarding possible ethical transgressions
involving senior management of the Company.
SECTION 3.15. Other Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors,
may appoint such committees, in addition to the committees specified
in this ARTICLE THREE, as it may deem appropriate. Each such
committee shall consist of three or more members of the Board of
Directors and shall have such powers of the Board of Directors as
_______________
* Added 11/03/94
shall be conferred or authorized by such resolution and as permitted
by law. Each such committee shall have such name as may be
determined by the resolution appointing it. Each such committee
shall serve at the pleasure of the Board of Directors.
ARTICLE FOUR
OFFICES
*SECTION 4.1. Appointment; Qualification. The officers of the
Corporation shall be a Chief Executive Officer, a President, one or
more Vice Presidents, a Secretary, one or more Assistant Secretaries,
a Treasurer and one or more Assistant Treasurers, each of whom shall
be appointed by the Board of Directors. The Board of Directors may
appoint a Vice Chairman of the Board of Directors and such other
officers as it may from time to time determine. Two or more offices
may be held by the same person, except the offices of President and
Secretary.
SECTION 4.2. Term of Office. The term of office of the
officers of the Corporation shall be until the first meeting of the
Board of Directors following the next annual meeting of shareholders.
Subject to Sections 4.3 and 4.4, each officer shall hold office until
the expiration of the term for which he is appointed and until his
successor is appointed and qualified. Any vacancy in any office
shall be filled for the unexpired portion of the term by the Board of
Directors.
*SECTION 4.3. Resignation. Any officer of the Corporation may
resign at any time by giving written notice of such resignation to
the Board of Directors, its Chairman, the Chief Executive Officer,
the President or the Secretary of the Corporation.
SECTION 4.4. Removal. Any officer of the Corporation
appointed by the Board of Directors may be removed at any time, with
or without cause, by the Board of Directors.
SECTION 4.5. Compensation. The compensation of each officer
shall be such as the Board of Directors may from time to time
determine.
________________
* Amended 7/14/94
*SECTION 4.6. Vice Chairman of the Board of Directors. The
Vice Chairman of the Board of Directors, if one be appointed, shall
preside in the absence of the Chairman of the Board of Directors at
all meetings of the shareholders and the Board of Directors. In the
absence or disability of the Chairman of the Board of Directors, he
shall exercise the powers and perform the duties of the Chairman of
the Board of Directors, subject to the direction of the Board of
Directors. He shall have such further powers and duties as may be
conferred upon him by the Board of Directors.
**SECTION 4.7. Chief Executive Officer. The Chief Executive
Officer shall act as the general manager and chief executive officer
of the Corporation and, subject to the direction of the Board of
Directors, shall have general supervision of the business and affairs
of the Corporation. The Chief Executive Officer shall have such
further powers and duties as may be conferred by the Board of
Directors.
***SECTION 4.8. President. The President, subject to the
direction of the Board of Directors, shall have charge of the
business of the Corporation relating to general operation, and shall
perform all the duties of his office prescribed by law or the Board
of Directors. In the absence or disability of the Chairman of the
Board of Directors and the Vice Chairman of the Board of Directors,
if any, the President shall exercise the powers and perform the
duties of the Chairman of the Board of Directors, subject to the
direction of the Board of Directors.
SECTION 4.9. Vice President. Each Vice President shall have
such duties and powers as are usually incident to such office and as
the Board of Directors shall from time to time prescribe. In the
absence or disability of the President, the Vice President, or if
there shall be more than one Vice President, then the one designated
by the Board of Directors, shall exercise the powers and perform the
duties of the President, subject to the direction of the Board of
Directors.
SECTION 4.10. Secretary. The Secretary shall be the Secretary
both of the Board of Directors and of the Corporation. The Secretary
shall attend all meetings of shareholders and of the Board of
Directors and keep accurate records thereof. The Secretary shall be
custodian of the corporate seal and shall perform the other duties
incident to the office of Secretary, subject to the direction of the
Board of Directors.
________________
* Former SECTION 4.7, renumbered 7/14/94
** Added 7/14/94
*** Amended 7/14/94
SECTION 4.11. Assistant Secretary. In the absence or
disability of the Secretary, each Assistant Secretary shall have the
powers and perform the duties of the Secretary, subject to the
direction of the Board of Directors.
SECTION 4.12. Treasurer. The Treasurer shall have care of all
funds and securities of the Corporation and shall exercise the powers
and shall perform the duties incident to the office of Treasurer,
subject to the direction of the Board of Directors.
SECTION 4.13. Assistant Treasurer. In the absence or
disability of the Treasurer, each Assistant Treasurer shall have the
power and perform the duties of the Treasurer, subject to the
direction of the Board of Directors.
SECTION 4.14. Other Officers. Each other officer of the
Corporation shall exercise the powers and shall perform the duties
incident to his office, subject to the direction of the Board of
Directors.
SECTION 4.15. Bond. Any officer of the Corporation, if so
required by the Board of Directors, shall give to the Corporation
such bond or other security for the faithful performance of his
duties as may be satisfactory to the Board of Directors.
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
SECTION 5.1. Indemnification. (a) The Corporation shall
indemnify to the fullest extent now or hereafter provided for or
permitted by law each person involved in, or made or threatened to be
made a party to, any action, suit, claim or proceeding, arbitration,
alternative dispute resolution mechanism, investigation,
administrative or legislative hearing or any other actual,
threatened, pending or completed proceeding, whether civil or
criminal, or whether formal or informal, and including an action by
or in the right of the Corporation or any other corporation, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, whether profit or non-profit (any such entity, other than
the Corporation, being hereinafter referred to as an "Enterprise"),
and including appeals therein (any such process being hereinafter
referred to as a "Proceeding"), by reason of the fact that such
person, such person's testator or intestate (i) is or was a director
or officer of the Corporation, or (ii) while serving as a director or
officer of the Corporation, is or was serving, at the request of the
Corporation, as a director, officer, or in any other capacity, any
other Enterprise, against any and all judgments, fines, penalties,
amounts paid in settlement, and expenses, including attorneys' fees,
actually and reasonably incurred as a result of or in connection with
any Proceeding, or any appeal therein, except as provided in Section
5.1(b).
(b) No indemnification shall be made to or on behalf of any
such person if a judgment or other final adjudication adverse to such
person establishes that such person's acts were committed in bad
faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that such person
personally gained in fact a financial profit or other advantage to
which such person was not legally entitled. In addition, no
indemnification shall be made with respect to any Proceeding
initiated by any such person against the Corporation, or a director
or officer of the Corporation, other than to enforce the terms of
this ARTICLE FIVE, unless such Proceeding was authorized by the Board
of Directors. Further, no indemnification shall be made with respect
to any settlement or compromise of any Proceeding unless and until
the Corporation has consented to such settlement or compromise.
(c) Written notice of any Proceeding for which indemnification
may be sought by any person shall be given to the Corporation as soon
as practicable. The Corporation shall then be permitted to
participate in the defense of any such proceeding or, unless
conflicts of interest or position exist between such person and the
Corporation in the conduct of such defense, to assume such defense.
In the event that the Corporation assumes the defense of any such
Proceeding, legal counsel selected by the Corporation shall be
acceptable to such person. After such an assumption, the Corporation
shall not be liable to such person for any legal or other expenses
subsequently incurred unless such expenses have been expressly
authorized by the Corporation. In the event that the Corporation
participates in the defense of any such Proceeding, such person may
select counsel to represent such person in regard to such a
Proceeding; however, such person shall cooperate in good faith with
any request that common counsel be utilized by the parties to any
Proceeding who are similarly situated, unless to do so would be
inappropriate due to actual or potential differing interests between
or among such parties.
(d) In making any determination regarding any person's
entitlement to indemnification hereunder, it shall be presumed that
such person is entitled to indemnification, and the Corporation shall
have the burden of proving the contrary.
SECTION 5.2. Advancement of Expenses. Except in the case of a
Proceeding against a director or officer specifically approved by the
Board of Directors, the Corporation shall, subject to Section 5.1
above, pay expenses actually and reasonably incurred by or on behalf
of a director or officer in defending any Proceeding in advance of
the final disposition of such Proceeding. Such payments shall be
made promptly upon receipt by the Corporation, from time to time, of
a written demand of such person for such advancement, together with
an undertaking by or on behalf of such person to
repay any expenses so advanced to the extent that the person
receiving the advancement is ultimately found not to be entitled to
indemnification for part or all of such expenses.
SECTION 5.3. Rights Not Exclusive. The rights to
indemnification and advancement of expenses granted by or pursuant to
this ARTICLE FIVE (i) shall not limit or exclude, but shall be in
addition to, any other rights which may be granted by or pursuant to
any statute, corporate charter, by-law, resolution of shareholders or
directors or agreement, (ii) shall be deemed to constitute
contractual obligations of the Corporation to any director or
officer who serves in a capacity referred to in Section 5.1 at any
time while this ARTICLE FIVE is in effect, (iii) shall continue to
exist after the repeal or modification of this ARTICLE FIVE with
respect to events occurring prior thereto, and (iv) shall continue as
to a person who has ceased to be a director or officer and shall
inure to the benefit of the estate, spouse, heirs, executors,
administrators or assigns of such person. It is the intent of this
ARTICLE FIVE to require the Corporation to indemnify the persons
referred to herein for the aforementioned judgments, fines,
penalties, amounts paid in settlement, and expenses, including
attorney's fees, in each and every circumstance in which such
indemnification could lawfully be permitted by express provisions of
by-laws, and the indemnification required by this ARTICLE FIVE shall
not be limited by the absence of an express recital of such
circumstances.
SECTION 5.4. Indemnification of Employees and Others. The
Corporation may, from time to time, with the approval of the Board of
Directors, and to the extent authorized, grant rights to
indemnification, and to the advancement of expenses, to any employee
or agent of the Corporation or to any person serving at the request
of the Corporation as a director or officer, or in any other
capacity, any other Enterprise, to the fullest extent of the
provisions of this ARTICLE FIVE with respect to the indemnification
and advancement of expenses of directors and officers of the
Corporation.
SECTION 5.5. Authorization of Contracts. The Corporation may,
with the approval of the Board of Directors, enter into an agreement
with any person who is, or is about to become, a director, officer,
employee or agent of the Corporation, or who is serving, or is about
to serve, at the request of the Corporation, as a director, officer,
or in any other capacity, any other Enterprise, which agreement may
provide for indemnification of such person and advancement of
expenses to such person upon terms, and to the extent, not prohibited
by law. The failure to enter into any such agreement shall not
affect or limit the rights of any such person under this ARTICLE
FIVE.
SECTION 5.6. Insurance. The Corporation may purchase and
maintain insurance to indemnify the Corporation and any person
eligible to be indemnified under this ARTICLE FIVE within the limits
permitted by law.
ARTICLE SIX
SHARES
*SECTION 6.1. Certificates Representing Shares. The shares of
the Corporation shall be represented by certificates in such form
consistent with law and the Certificate of Incorporation as the Board
of Directors may from time to time prescribe, and may be signed by
the Chairman of the Board of Directors, or the Vice Chairman of the
Board of Directors, if any, or the President or a Vice President and
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer. The signatures of the officers upon a
certificate may be facsimiles if the certificate is countersigned by
a transfer agent or registered by a registrar other than the
Corporation or any of its employees. Such certificates shall also
bear the seal of the Corporation or a facsimile thereof.
SECTION 6.2. Transfer of Shares. Shares of the Corporation
shall be transferable on the books of the Corporation by the holder
of record thereof or by his attorney upon surrender of the
certificate representing such shares with an assignment endorsed
thereon or attached thereto duly executed and with such proof of
authenticity of signatures as the Corporation may reasonably require.
Prior to the transfer of shares of stock on the books of the
Corporation and issuance of a new certificate to the transferee, the
Corporation may treat the holder of record of a share as the complete
owner thereof exclusively entitled to receive dividends thereon and
to vote such share and otherwise entitled to all the rights and
powers of a complete owner thereof, notwithstanding notice to the
contrary.
SECTION 6.3. Lost Certificates. The Corporation shall issue a
new certificate for shares to replace a certificate theretofore
issued by it alleged to have been lost on such reasonable terms and
conditions as the Board of Directors may from time to time prescribe.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.1. Inspection of Records. The Board of Directors
shall have authority, except as otherwise provided by law, to
determine the extent to which the books and records of account of the
Corporation shall be open to inspection by a shareholder.
SECTION 7.2. Waiver of Notice and Lapse of Time. Any action
that is authorized to be taken after notice or after the lapse of a
prescribed period of time may be taken without notice and without the
lapse of such period of time, if at any time before or after such
action is completed the person entitled to such notice or entitled to
participate in the action to be taken, or in the case of a
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* Amended 7/14/94
shareholder, his attorney-in-fact, submits a signed waiver of notice
or of such time requirement.
SECTION 7.3. Fiscal Year. The fiscal year of the Corporation
shall end on December 31 in each year.
SECTION 7.4. Corporate Seal. The corporate seal shall be in
such form as the Board of Directors may from time to time prescribe.
ARTICLE EIGHT
AMENDMENT OF BY-LAWS
SECTION 8.1. Amendment of By-Laws. These By-Laws may be
amended, added to, rescinded or repealed at any meeting of the Board
of Directors or of the shareholders, provided notice of the proposed
change was given in the notice of the meeting or, in the case of a
meeting of the Board of Directors, in a notice given not less than
two days prior to the meeting; provided, however, that,
notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, the
Certificate of Incorporation, any Preferred Stock Designation or
these By-Laws, the affirmative vote of the holders of at least 80
percent of the combined voting power of all the then-outstanding
shares of the Voting Stock, voting together as a single class, shall
be required to alter, amend or repeal any provision of Section 3.1,
3.2 or 3.3 of these By-Laws or any provision of these By-Laws
pertaining to the alteration, amendment or repeal of Section 3.1, 3.2
or 3.3 of these By-Laws.
DMG\BY-LAWS.ORU
11/3/94