Legal/Board.96/ByLaws.4
BY-LAWS AS AMENDED THROUGH FEBRUARY 21, 1997
B Y - L A W S
OF
CALENERGY COMPANY, INC.
a Delaware corporation
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of
the stockholders of California Energy Company, Inc.
(hereinafter called the "Corporation") shall be held at 10:00
a.m. on such day in the month of May in each year as shall
be selected by the Chairman of the Board, or, failing such
selection, by the Board of Directors. At the annual
meeting, the stockholders shall elect by a plurality vote
a board of directors (hereinafter referred to as "Board"),
and transact such other business as may properly be brought
before the meeting. If the annual meeting shall not be held
on the day hereinabove provided for, the Board shall cause
the meeting to be held as soon thereafter as convenient.
Section 2. Special Meetings. Special meetings of
the stockholders may be called for any purpose or purposes at
any time only by the Board, or the President. Special
meetings may not be called by the stockholders.
Section 3. Notice of Meetings. Notice of the place,
date and time of the holding of each annual and special meeting
of the stockholders and, in the case of a special meeting, the
purpose or purposes thereof, shall be given personally or by
mail in a postage prepaid envelope to each stockholder entitled to vote
at such meeting, not less than ten nor more than sixty days
before the date of such meeting, and, if mailed, it shall be
directed to such stockholder at his address as it appears on
the records of the Corporation, unless he shall have filed
with the Secretary of the Corporation a written request that
notices to him be mailed to some other address, in which case
it shall be directed to him at such other address. Notice
of any meeting of stockholders shall not be required to be
given to any stockholder who shall attend such meeting in
person or by proxy and shall not, at the beginning of such
meeting, object to the transaction of any business because
the meeting is not lawfully called or convened, or who shall,
either before or after the meeting, sign a waiver. Notice of an
adjourned meeting need not be given if the time and place to
which the meeting shall be adjourned were announced at the
meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 4. Place of Meetings. Meetings of the
stockholders may be held at such place, within or without
the State of Delaware, as the Board or the officer calling
the same shall specify in the notice of such meeting, or
in a duly executed waiver of notice thereof.
Section 5. Quorum. (a) At all meetings of
the stockholders, the holders of a majority of the shares of stock
of the Corporation issued and outstanding and entitled to vote
shall be present in person or by proxy to constitute a quorum
for the transaction of any business (except business referred to
in subsection (b) below), except when stockholders are
required to vote by class, in which event a majority of
the issued and outstanding shares of the appropriate class
shall be present in person or by proxy, or except as
otherwise provided by statute. (b) At all meetings of the
stockholders in which the action to be taken requires the
approval of sixty-six and two-thirds percent (66 2/3%) of
the issued and outstanding shares of stock entitled to vote,
the holders of sixty- six and two-thirds percent (66
2/3%) of the shares of stock of the Corporation issued and
outstanding and entitled to vote shall be present in person
or by proxy in order to constitute a quorum for the
transaction of any such business, except when stockholders
are required to vote by class, in which event, sixty-
six and two-thirds percent (66 2/3%) of the issued and
outstanding shares of the appropriate class shall be present
in person or by proxy, or except as otherwise provided by
statute. (c) In the absence of a quorum, the holders of a
majority of the shares of stock present in person or by
proxy and entitled to vote, or if no stockholder entitled to
vote is present, then any officer of the Corporation, may
adjourn the meeting from time to time. At any such
adjourned meeting at which a quorum may be present any
business may be transacted which might have been transacted
at the meeting as originally called.
Section 6. Organization. At each meeting of
the stockholders the Chairman of the Board, or in his absence
or inability to act, the President, or in the absence or
inability to act of the Chairman of the Board or
President, a Vice President, or in the absence of all of the
foregoing, any person chosen by a majority of those
stockholders present, shall act as chairman of the meeting.
The Secretary, or in his absence or inability to act, the
Assistant Secretary or any person appointed
by the chairman of the meeting, shall act as secretary of
the meeting and keep the minutes thereof.
Section 7. Order of Business. The order of business at
all meetings of the stockholders shall be as determined by
the chairman of the meeting.
Section 8. Voting. Except as otherwise required by
statute or by the Certificate of Incorporation, each holder of record
of shares of stock of the Corporation having voting power
shall be entitled at each meeting of the stockholders to
one vote for every share of such stock standing in his name
on the record of stockholders of the Corporation on the date
fixed by the Board as the record date for the determination
of the stockholders who shall
be entitled to notice of and to vote at such meeting; or at
the close of business on the day next preceding the day
on which notice thereof shall be given, or if notice is waived, at
the close of business on the day next preceding the day on
which the meeting is held; or each stockholder entitled to
vote at any meeting of stockholders may authorize another
person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. Any such proxy shall
be delivered to the secretary of
such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No
proxy shall be valid after the expiration of three years from
the date thereof, unless otherwise provided in the proxy.
Every proxy shall be
revocable at the pleasure of the stockholder executing
it, except in those cases where an irrevocable proxy is
permitted by law. Except as otherwise provided by statute,
these By-Laws, or the Certificate of Incorporation, any
corporate action to be taken by
vote of the stockholders shall be authorized by a
majority of the total votes, or when stockholders are required
to
vote by class by a majority of the votes of the
appropriate class, cast at a meeting of stockholders by the
holders of shares present in person or represented by proxy and
entitled to vote on such action. Unless required to be
advisable, the vote on any question need not be by written
ballot. On a vote by written ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
Section 9. List of Stockholders. The officer who
has
charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled
to vote at that meeting,
arranged in alphabetical order, and showing the
addresses of each stockholder and the number of shares
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 days prior to the meeting, either
at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who
is present.
Section 10. Consent of Stockholders in Lieu of
Meeting. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in
connection with any corporate action, the meeting and vote
of stockholders can be dispensed with: (1) if all of the
stockholders who would have been entitled to vote upon the
action if such meeting were held shall consent in writing to
such corporate action being taken; or
(2) unless the Certificate of Incorporation provides
otherwise, with the written consent of the holders of not
less than the minimum percentage of the total vote required
by statue for the proposed corporate action, and provided
that prompt notice must be given to all stockholders of the
taking of corporate action without a meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of
the Corporation shall be managed by the Board. The
Board may exercise all such authority and powers of the
Corporation and do all such lawful acts and things as are
not by statute or the Certificate of Incorporation directed
or required to be exercised or done by the stockholders.
Section 2. (a) Number, Qualifications, Election and
Term of Office. The business and affairs of the Corporation
shall be managed and controlled by a Board of Directors
consisting of thirteen persons. At the 1989 Annual Meeting of
Stockholders, the directors were divided into three classes,
as nearly equal in number as possible, with the term of
office of the first class to expire at the 1990 Annual Meeting
of Stockholders, the term of office of the second class to
expire at the 1991 Annual Meeting of Stockholders and the
term of office of the third class to expire at the 1992
Annual Meeting of Stockholders. At each
Annual Meeting of Stockholders following such
initial
classification and election, directors elected to succeed
those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding Annual
Meeting of Stockholders after their election. All directors
shall be the age of majority and need not be stockholders.
Each director
shall hold office until the end of his term and until
his
successor shall have been duly elected and qualified, or
until his death, or until he shall have resigned, or have been
removed for cause, as hereinafter provided in these By-
Laws or as otherwise
provided by statute or the Certificate of
Incorporation.
(b) Filling of Vacancies. Except as otherwise provided
in Article II, Section 11, any vacancies on the Board resulting
from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a
majority vote of the directors then in office, and
directors so chosen shall hold office for a term expiring at
the Annual Meeting of Stockholders at which the term of the
class to which they have been elected expires. No decrease in
the number of directors constituting the Board shall shorten
the term of any incumbent director.
(c) Removal. Any director, or the entire Board, may
be
removed from office at any time, but only for cause and only
by the affirmative vote of a majority of the Board or the
holders of at least sixty six and two thirds percent (66 2/3%)
of the voting power of all of the shares of the Corporation
entitled to vote for the election of directors. For
the purposes of this Paragraph (c), "cause" shall mean
the willful and continuous failure of a director
substantially to perform such director's duties to the
Corporation (other than such failure resulting from incapacity
due to physical or mental illness) or the willful engaging
by a director in gross misconduct materially and
demonstrably injurious to the Corporation.
Section 3. Place of Meetings. Meetings of the Board may
be held at such place, within or without the State of
Delaware, as the Board may from time to time determine
or as shall be specified in the notice or waiver of notice
of such meeting.
Section 4. First Meeting. The Board shall meet for
the purpose of organization, the election of officers,
and the transaction of other business, as soon as practicable
after each Annual
Meeting of Stockholders, on the same day and at the same
place where such annual meeting shall be held. Notice of
such
meeting need not be given. Such meeting may be held at any
other time or place (within or without the State of
Delaware) which shall
be specified in a notice thereof given as hereinafter
provided in Article II, Section 7.
Section 5. Regular Meetings. Regular meetings of the
Board shall
be held at such time and place as the Board may from time
to time determine. If any day fixed for a regular meeting
shall be a legal holiday at the place where the meeting is to
be held, then the meeting which would otherwise be held on
that day shall be held at the same hour on the next
succeeding business day. Notice
of regular meetings of the Board need not be given except
as otherwise required by statute or these By-Laws.
Section 6. Special Meetings. Special meetings of the
Board may be called by two or more directors of the
Corporation or by the Chairman of the Board or the President.
Section 7. Notice of Meetings. Notice of each
special meeting of the Board (and of each regular meeting
for which notice
shall be required) shall be given by the Secretary as
hereinafter provided in this Section 7, in which notice shall
be stated
the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall
be delivered to each director either personally or by
telephone, facsimile, telegraph, cable or wireless, at least
twenty-four hours
before the time at which such meeting is to be held or by
first-class mail, postage pre-paid, addressed to him at
his residence, or usual place of business, at least three days
before the day on which such meeting is to be held. Notice of
any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed
waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of
notice to him. Except as otherwise specifically required by
these By-Laws, a notice or waiver of notice of any
regular or special meeting need not state the purposes of
such meeting.
Section 8. Quorum and Manner of Acting. Three directors
or one-third of the entire Board, whichever is greater,
shall be present in person at any meeting of the Board
in order to constitute a quorum for the transaction of
business at such meeting, and, except as otherwise expressly
required by statute or the Certificate of Incorporation, the
act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board. In
the absence of a quorum at any meeting of the Board, a
majority of the directors present thereat, or if no director
be present, the Secretary may adjourn such meeting to another
time and place, or such meeting, unless it be the first
meeting of the Board, need not be held. At any adjourned
meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as
originally called. Except as provided in Article III of
these By-Laws, the directors shall act only as a Board
and the individual directors shall have no power as such.
Section 9. Organization. At each meeting of the Board,
the Chairman of the Board (or, in his absence or inability to
act, the President, or in his absence or inability to act,
another director chosen by a majority of the directors present)
shall act
as chairman of the meeting and preside thereat. The
Secretary (or, in his absence or inability to act, any person
appointed by the chairman) shall act as secretary of the
meeting and keep the minutes thereof.
Section 10. Resignation. Any director of the
Corporation may resign at
any time by giving written notice of his
resignation to the Board or Chairman of the Board or
the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time
when it shall become
effective shall not be specified therein,
immediately upon its acceptance. Unless otherwise
specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 11. Certain Vacancies. Vacancies and newly
created
directorships resulting from any increase in the
authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall
hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall
constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder
or stockholders holding at least ten percent of the total
number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the
directors then in office. When one
or more directors shall resign from the Board, effective at
a future date, a majority of the directors then in
office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as
provided in this action in the filling of other vacancies.
Section 12. Compensation. The Board shall have
authority to fix the compensation, including fees and
reimbursement of expenses, of directors for services to the
Corporation in any capacity, provided no such payment shall
preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 13. Action Without Meeting. Any action required
or
permitted to be taken at any meeting of the Board or of
any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
Section 14. Telephonic Meetings. Unless
otherwise restricted by the Certificate of Incorporation
or by these By-Laws, members of the Board of Directors may
participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other and
such participation in a meeting shall constitute
presence in person at the meeting.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees. The Board may,
by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of
two or more of the directors of the Corporation. The
Executive Committee shall consist of the Chairman of the
Board and such of the other members of the Board as shall
be appointed pursuant to the immediately preceding sentence.
The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the
resolution creating the committee, shall have and may
exercise the powers of the Board in the management of the
business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers
which may require it; provided, however, that in the absence
or disqualification of any member of such committee or
committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he,
she or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and
shall report such minutes to the Board when required. All
such proceedings shall be subject to revision or alteration
by the Board; provided, however, that third parties
shall not be prejudiced by such revision or alteration.
Section 2. General. A majority of any committee
may
determine its action and fix the time and place of its
meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the
committee in the manner provided for in Article II, Section
7. The Board shall have any power at any time to fill
vacancies in, to change the
membership of, or to dissolve any such committee. Nothing
herein shall be deemed to prevent the Board from appointing one
or more committees consisting in whole or in part of persons
who are not
directors of the Corporation; provided, however, that no
such committee shall have or may exercise any authority of the
Board.
ARTICLE IV
OFFICERS
Section 1. Number and Qualifications. The officers of
the Corporation shall include the Chairman of the Board, the
ViceChairman of the Board, the President, one or more Vice-
Presidents (any of whom may be designated as Executive Vice-
President), the
Chief Financial Officer, the Treasurer, the Controller and
the
Secretary. Any two or more offices may be held by the
same person. Such officers shall be elected from time to time
by the
Board or by the Chairman of the Board, each to hold office
until his successor shall have been duly elected or appointed
and shall have qualified, or until his death, or until he
shall have resigned, or have been removed, as hereinafter
provided in these By-Laws. The Board may from time to time
elect, or the Chairman
of the Board may appoint, such other officers (including one
or
more Assistant Vice-Presidents, Assistant Secretaries
and
Assistant Treasurers), and such agents as may be necessary
or
desirable for the business of the Corporation. Such
other
officers and agents shall have duties and shall hold
their offices for such terms as may be prescribed by the Board
or by
the appointing authority.
Section 2. Resignations. Any officer of the
Corporation may resign at any time by giving written
notice of his
resignation to the Board, the Chairman of the Board,
the
President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time
when it
shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise
specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of
the
Corporation may be removed, either with or without cause, at
any time, by the Chairman of the Board or by the vote of the
majority of the entire Board at any meeting of the Board .
Such removal shall be without prejudice to the contractual
rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office,
whether arising from death, resignation, removal or any other
cause, may be filled for the unexpired portion of the term
of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular elections or
appointment to such office.
Section 5. The Chairman of the Board. The Chairman of
the Board shall be the Chief Executive Officer and shall have
general and active supervision and direction over the
management of the Corporation's business and over the
President and Chief Operating Officer and all of the
Corporation's other officers, agents and employees. The
Chairman of the Board shall, if present, preside at each
meeting of the stockholders and of the Board and shall be an
ex officio member of all committees of the Board. The
Chairman of the Board shall perform all duties incident to
the office of Chairman of the Board and such other duties as
may from time to time be assigned to him by the Board.
Section 6. Vice-Chairman of the Board. The Vice-
Chairman of the Board shall be responsible for assisting the
Chairman of the Board and shall perform all such duties as
may from time to
time be assigned to him by the Board.
Section 7. The President. Unless the President's
duties
are otherwise modified by the Chairman of the Board,
the President shall, in consultation with and subject to
the
direction of the Chairman of the Board, have general and
active management of the operations and business of the
Corporation and general and active supervision and direction
over the affairs of the Corporation and over all of its other
officers, agents and employees (except the Chairman of the
Board and Chief Executive Officer). The President shall
be the Corporation's Chief Operating Officer and shall see
that all duties of subordinate officers are properly
performed and that their responsibilities are
properly discharged. In performing such duties, the
President shall report directly to the Chairman of the Board
and shall consult with the Chairman of the Board and be
subject to
the direction of the Chairman of the Board regarding
significant decisions and strategic options for the Company.
At the request of the Chairman of the Board, or in the case
of his absence or inability to act, the President shall
perform the duties of the Chairman of the Board and when
so acting shall have all the powers of, and be subject
to, all the restrictions upon, the Chairman of the Board.
He shall perform all duties incident to the office of
President and such other duties as from time to time may be
assigned to him by the Chairman of the Board and by these By-
Laws.
Section 8. Vice Presidents. The Executive Vice-
President
and each Vice-President shall have such powers and perform
all such duties as from time to time may be assigned to him
by the Board or by the Chairman of the Board.
Section 9. The Chief Financial Officer. The
Chief
Financial Officer shall:
(a) have charge and custody of, and be responsible for,
all the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts
and
disbursements in books belonging to the Corporation and
have control of all books of account of the Corporation;
(c) cause all moneys and other valuables to be deposited
to the credit of the Corporation in such depositaries as
may be designated by the Board;
(d) receive, and give receipts for, moneys due and
payable to the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise
the investment of
its funds as ordered or authorized by the Board,
taking proper vouchers therefor;
(f) render the Chairman of the Board, the President and
the Board, whenever the Board or the Chairman of the
Board may require,
an account of the financial condition of the
Corporation; and
(g) in general, perform all the duties incident to
the
office of treasurer and such other duties as from time to
time may be assigned to him by the Board or by the Chairman
of the Board.
Section 10. The Secretary. The secretary shall:
(a) keep or cause to be kept in one or more books
provided for the purpose, the minutes of all meetings of the
Board, the committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance
with the provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of
the
Corporation and affix and attest the seal to all
stock certificates of the Corporation (unless the seal
of the
Corporation on such certificates shall be a facsimile,
as
hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation
under its seal;
(d) see that the books, reports, statements,
certificates and other documents and records required by law
to be kept and filed are properly kept and filed; and
(e) in general, perform all the duties incident to
the office of Secretary and such other duties as from time to
time may be assigned to him by the Board or by the Chairman
of the Board.
Section 11. Officers' Bonds or Other Security. If
required by the Board, any officer of the Corporation shall
give a bond or other security for the faithful performance of
his duties, in such amount and with such surety or sureties
as the Board may require.
Section 12. Compensation. The compensation of the
officers of the Corporation for their services as such
officers shall be fixed from time to time by the Board;
provided, however, that the Board may delegate to the Chairman
of the Board the power to fix the
compensation of officers and agents appointed by the
Chairman of the Board. An officer of the Corporation shall
not be prevented from receiving compensation by reason of the
fact that he is also a director of the Corporation, but
any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation
paid to him.
ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation
shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or
may hereafter be
amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal,
administrative or
investigative (a "proceeding"), by reason of the fact that he,
or a person for whom he is the legal representative, is or
was a
director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee, fiduciary
or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans,
against all liability
and loss suffered and expenses reasonably incurred by
such person. The Corporation shall indemnify a person
in
connection with a proceeding initiated by such person only if
the proceeding was authorized by the Board.
Section 2. Prepayment of Expenses. The Corporation
shall
pay the expenses incurred in defending any proceeding in
advance of its final disposition; provided, however, that the
payment of expenses incurred by a director or officer in his
capacity as a director or officer in advance of the final
disposition of the proceeding shall be made only upon
receipt of an undertaking by the director or officer to
repay all amounts advanced if it should be determined to be
indemnified under this Article V or otherwise.
Section 3. Claims. If a claim for indemnification
or payment of expenses under this Article V is not paid in
full within ninety days after a written claim therefor
has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and,
if successful in whole or
in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action, the
Corporation shall have the burden of proving that the
claimant was not
entitled to the requested indemnification or payment of
expenses under applicable law.
Section 4. Nonexclusivity of Rights. The rights
conferred on any person by this Article V shall not be
exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5. Contracts and Arrangements. The Corporation
may enter into contracts providing indemnification to the full
extent authorized or permitted by the Delaware General
Corporation Law and may create a trust fund, grant a security
interest and/or use other means (including, without
limitation, letters of credit, surety bonds and other
similar arrangements) to ensure the payment of such
amounts as may become necessary to effect indemnification
pursuant to such contracts or otherwise.
Section 6. Amendment or Repeal. Any repeal or
modification of the foregoing provisions of this Article V
shall not adversely affect any right or protection of any
person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as
otherwise required by statute, the Certificate of
Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on
behalf of the Corporation by such
officer or officers (including any assistant officer) of
the Corporation as the Board may from time to time direct.
Such authority may be general or confined to specific instances
as the Board may determine. Unless authorized by the Board or
expressly permitted by these By-Laws, an officer or agent or
employee shall not have any power or authority to bind the
Corporation by any contract or engagement or to pledge its
credit or to render it pecuniarily liable for any purpose or
to any amount.
Section 2. Loans. Unless the Board shall
otherwise determine, either (a) the President or the Chairman
of the Board, or (b) any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary, together
with the President or the Chairman of the Board, may effect
loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any
firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds
or other certificates or evidence of indebtedness of the
Corporation, but no officer or officers shall mortgage,
pledge, hypothecate or transfer any securities or other
property of the Corporation, except when authorized by the
Board.
Section 3. Checks, Drafts, etc. All checks, drafts,
bills of exchange or other orders for the payment of money out
of the funds of the Corporation, and all notes or other
evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons
and in such manner as shall from time to time be authorized by
the Board.
Section 4. Deposits. All funds of the Corporation
not otherwise employed shall be deposited from time to time
to the credit of the Corporation in such banks, trust
companies or other depositories as the Board may from time to
time designate or as
may be designated by any officer or officers of the
Corporation to whom such power of designation may from time
to time be delegated by the Board. For the purpose of
deposit and for the purpose of collection for the account of
the Corporation, checks, drafts and other orders for the
payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any
officer or agent of the Corporation, or in such manner as the
Board may determine by resolution.
Section 5. General and Special Bank Accounts. The
Board
may from time to time authorize the opening and keeping
of general and special bank accounts with such banks,
trust
companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time
to time be delegated by the Board. The Board may make such
special rules and
regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may
deem expedient.
Section 6. Proxies in Respect of Securities of
Other
Corporations. Unless otherwise provided by resolution adopted
by the Board, Chairman of the Board, the President or a
Vice President may from time to time appoint an attorney or
attorneys or agent or agents, of the Corporation, in the name
and on behalf of the Corporation to cast the votes which the
Corporation may be entitled to cast as the holder of stock or
other securities in any other corporation, any of the stock
or other securities of which may be held by the Corporation,
at meetings of the holders of the stock or other securities of
such other corporation, or to consent in writing, in the
name of the Corporation as such holder, to any action by
such other corporation, and 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, or otherwise, all such written
proxies or other instruments as he may deem necessary or
proper.
ARTICLE VII
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of
the Corporation shall be entitled to have a certificate, in
such form as shall be approved by the Board, certifying the
number of shares of stock of the Corporation owned by
him. The
certificates representing shares of stock shall be signed in
the name of the Corporation by the Chairman of the Board
or the President or a Vice-President and by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or
printed); provided, however, that where any such certificate
is countersigned by a transfer agent other than the
Corporation or its employee, or is registered by a
registrar other than the Corporation or one of its employees,
the signature of the officers of the
Corporation upon such
certificates may be facsimiles, engraved or printed. In case
any officer who shall have signed or whose facsimile
signature has been placed upon such certificates shall have
ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the
Corporation with the same effect as if such officer were still
in office at the date of their issue.
Section 2. Books of Account and Record of
Stockholders.
The books and records of the Corporation may be kept at
such places within or without the State of Delaware, as the
Board may from time to time determine. The stock record
books and the blank stock certificate books shall be kept by
the Secretary or
by any other officer or agent designated by the Board.
Section 3. Transfers of Shares. Transfers of shares
of stock of the Corporation shall be made on the stock
records of the Corporation only upon authorization by the
registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed
with the Secretary or with a transfer agent or transfer
clerk, and on surrender of the certificate or certificates
for such shares properly endorsed or accompanied by a duly
executed stock transfer power and the payment of all taxes
thereon. Except as otherwise provided by law, the Corporation
shall be entitled to recognize the exclusive right of a person
in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to
receive dividends or other distributions, and to vote as
such owner, and the Corporation may hold any such
stockholder of record liable for calls and assessments and the
Corporation shall not be bound to recognize any equitable or
legal claim to or interest in any such share or shares on
the part of any other person whether or not it shall have
express or other notice thereof. Whenever any transfers
of shares shall be made for collateral security and not
absolutely, and both the transferor and transferee request
the Corporation to do so, such fact shall be stated in the
entry of the transfer.
Section 4. Regulations. The Board may make such
additional rules and regulations, not inconsistent with these
By-Laws, as it may deem
expedient concerning the issue, transfer and
registration of certificates for shares of stock of
the
Corporation. It may appoint, or authorize any officer
or officers to appoint, one or more transfer agents or one or
more transfer clerks and one or more registrars and may
require all
certificates for shares of stock to bear the signature
or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates.
The
holder of any certificate representing shares of stock of
the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of such certificate,
and the
Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it which the owner
thereof shall
allege to have been lost, stolen or destroyed, or which
shall have been mutilated, and the Board may, in its
discretion,
require such owner or his legal representative to give to
the Corporation a bond in such sum, limited or unlimited, and
in such form and with such surety or sureties as the
Board in its absolute discretion shall determine, to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or
destruction of any such certificate, or the issuance of a
new certificate. Anything herein to the contrary
notwithstanding, the Board, in its absolute discretion, may
refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
Section 6. Stockholder's Right of Inspection. Any
person
who shall have been a stockholder of record of the
Corporation for at least six months immediately preceding his
demand, or any person holding, or thereunto authorized by the
holders of, at least
five percent of the outstanding shares of stock of the
Corporation, shall, in person or by attorney or other agent,
upon written demand under oath stating the purpose thereof,
have the right
during the ordinary business hours to inspect for any
proper purpose the Corporation's stock ledger, a list of
its stockholders and its other books and records, and to make
copies or extracts therefrom. A proper purpose shall mean a
purpose
reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney
or other agent to so act on behalf of the stockholder. The
demand under oath shall be directed to the Corporation at its
registered office in this State or at its principal place of
business.
Section 7. Fixing of Record Date. In order that
the Corporation may determine the stockholders entitled to
notice of or to vote at the meeting of stockholders or any
adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of
any rights or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
ARTICLE VIII
OFFICES
Section 1. Registered Office. The registered office of
the
Corporation in the State of Delaware shall be at 1209
Orange Street, Wilmington, County of New Castle, Delaware. The
name of the resident agent in charge thereof shall be the
Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have
an office or offices other than said principal office at such
place or places, either within or without the Sate of
Delaware, as the Board shall from time to time determine or
the business of the Corporation may require.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be January 1
to December 31 of each year.
ARTICLE X
SEAL
The Board shall provide a corporate seal, which shall be
in the form of two concentric circles and bear the name of
the Corporation and the words and figures "Corporate Seal
1971 Delaware."
ARTICLE XI
AMENDMENTS
The Board shall have the power to amend these By-Laws by
a majority vote. Notwithstanding anything contained in
these
By-Laws to the contrary, the stockholders may amend
these By-Laws, but only by an affirmative vote of sixty-
six and two-thirds percent (66 2/3%) of the voting power of
all shares of the Corporation entitled to vote, except when
stockholders are required to vote by class, in which
event sixty-six and two-thirds percent (66 2/3%) of the
voting power of that class shall be required.