BY-LAWS
OF
THE BEAR STEARNS COMPANIES INC.
(A Delaware Corporation)
(Amended and Restated as of June 25, 2001)
________________________
ARTICLE 1
DEFINITIONS
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As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended from
time to time.
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1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated
from time to time.
1.6 "Chairman of the Board" means the Chairman of the Board of Directors
of the Corporation.
1.7 "Chief Administrative Officer" means the Chief Administrative Officer of
the Corporation.
1.8 "Chief Executive Officer" means the Chief Executive Officer of the
Corporation.
1.9 "Chief Financial Officer" means the Chief Financial Officer of the
Corporation.
1.10 "Chief Operating Officer" means the Chief Operating Officer of the
Corporation, or if there be more than one, each such Chief Operating
Officer.
1.11 "Controller" means the Controller of the Corporation.
1.12 "Corporation" means The Bear Stearns Companies Inc.
1.13 "Directors" means directors of the Corporation.
1.14 "General Corporation Law" means the General Corporation Law of the State
of Delaware, as amended from time to time.
1.15 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to
the contrary notwithstanding.
1.16 "President" means the President of the Corporation, or if there be more
than one, each such President.
1.17 "Secretary" means the Secretary of the Corporation.
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1.18 "Stockholders" means stockholders of the Corporation.
1.19 "Treasurer" means the Treasurer of the Corporation.
1.20 "Vice President" means a Vice President of the Corporation.
1.21 "Whole Board" means the total number of directors of the Corporation as
last determined by the Board of Directors in accordance with the
Certificate of Incorporation, including any directorships that are
vacant for any reason.
ARTICLE 2
STOCKHOLDERS
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2.1 Place of Meetings. Every meeting of stockholders shall be held at the office
of the Corporation or at such other place within or without the State of
Delaware as shall be specified or fixed in the notice of such meeting or in the
waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders for the election of directors and
the transaction of such other business as may be brought before such meeting
shall be held at such hour and on such business day in each year as may be
determined by resolution adopted by the affirmative vote of a majority of the
Whole Board.
2.3 Deferred Meeting for Election of Directors. If the election of directors
shall not be held on the date designated therefor or at an adjournment of a
meeting convened on such date, the Board of Directors, by resolution or
resolutions adopted by the affirmative vote of a majority of the Whole Board,
shall cause to be held a special meeting of stockholders for such purpose as
soon thereafter as practicable.
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2.4 Other Special Meetings. A special meeting of stockholders (other than a
special meeting for the election of directors), unless otherwise prescribed by
statute, may be called at any other time only at the direction of the Board by
resolution adopted by the affirmative vote of a majority of the Whole Board or
such other person or persons as may be specified in the Certificate of
Incorporation. At any special meeting of stockholders only such business may be
transacted as is related to the purpose or purposes of such meeting set forth in
the notice thereof given pursuant to Section 2.6 of the By-laws or in any waiver
of notice thereof given pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or for the purpose of determining stockholders 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
date as the record date for any such determination of stockholders. Such date
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. If no such record
date is fixed:
2.5.1 The record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
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2.5.2 The record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting (if permitted), when no prior
action by the Board is necessary, shall be the day on which the first written
consent is expressed;
2.5.3 The record date for determining stockholders for any purpose other than
those specified in Sections 2.5.1 and 2.5.2 shall be at the close of business on
the day on which the Board adopts the resolution relating thereto. When a
determination of stockholders entitled to notice of or to vote at any meeting of
stockholders has been made as provided in this Section 2.5 such determination
shall apply to any adjournment thereof, unless the Board fixes a new record date
for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in Sections
2.5 and 2.7 of the By-laws, whenever under the General Corporation Law or the
Certificate of Incorporation or the By-laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. A copy of the notice of
any meeting shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled to
notice of or to vote at such meeting. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, with postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this section has
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof 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 at the
meeting as originally called. If, however, 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.
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2.7 Waivers of Notice. Whenever notice is required to be given to any
stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
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2.8 List of Stockholders. The Secretary shall prepare and make, or cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address 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.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise provided by law or
by the Certificate of Incorporation, the holders of a majority of the shares of
stock entitled to vote at any meeting of stockholders, present in person or
represented by proxy, shall constitute a quorum for the transaction of any
business at such meeting. When a quorum is once present to organize a meeting of
stockholders, it is not broken by the subsequent withdrawal of any stockholders.
The holders of a majority of the shares of stock present in person or
represented by proxy at any meeting of stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every stockholder of record shall be entitled at every meeting of
stockholders to one vote for each share of capital stock standing in his name on
the record of stockholders determined in accordance with Section 2.8 of the
By-laws. The provisions of Sections 212 and 217 of the General Corporation Law
shall apply in determining whether any shares of capital stock may be voted and
the persons, if any, entitled to vote such shares; but the Corporation shall be
protected in treating the persons in whose names shares of capital stock stand
on the record of stockholders as owners thereof for all purposes. At any meeting
of stockholders at which a quorum is present, all matters, except as otherwise
provided by law or by the Certificate of Incorporation or by the By-laws, shall
be decided by a majority of the votes cast at such meeting by the holders of
shares present in person or represented by proxy and entitled to vote thereon,
whether or not a quorum is present when the vote is taken. Unless otherwise
determined by the chairman of the meeting, election of directors need not be by
written ballot; provided, however, that by resolution duly adopted by the
stockholders, a vote by written ballot shall be required. In voting on any other
question on which a vote by ballot is required by law or is demanded by any
stockholder entitled to vote, the voting shall be by ballot. Each ballot shall
be signed by the stockholder voting or by his proxy, and shall state the number
of shares voted. On all other questions, the voting may be viva voce. Every
stockholder entitled to vote at a meeting of stockholders, or to express consent
to or dissent from corporate action in writing without a meeting, may authorize
another person or persons to act for him by proxy. The validity and
enforceability of any proxy shall be determined in accordance with Section 212
of the General Corporation Law.
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2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
2.11.1 The Board shall, in advance of any meeting of stockholders, appoint one
or more inspectors to act at the meeting and make a written report thereof. The
Board may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
2.11.2 The inspectors shall (i) ascertain the number of shares outstanding and
the voting power of each, (ii) determine the shares represented at the meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
inspector.
2.11.3 The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls,
unless the Court of Chancery of the State of Delaware upon application by a
stockholder shall determine otherwise.
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2.12 Organization. At every meeting of stockholders, the Chairman of the Board
or, in the absence of the Chairman of the Board, the Chief Executive Officer,
and in the absence of the Chairman of the Board and the Chief Executive Officer,
the President, or any one or more of the Presidents, and in the absence of the
Chairman of the Board, the Chief Executive Officer and the President(s), the
Chief Operating Officer or any one or more of the Chief Operating Officers, and
in the absence of any of the foregoing such person as shall have been designated
by resolution adopted by the affirmative vote of a majority of the Whole Board
or by the Chairman of the Board, shall act as chairman of the meeting. The
Secretary, or in his absence one of the Assistant Secretaries, shall act as
secretary of the meeting. In case none of the officers above designated to act
as secretary of the meeting shall be present, a secretary of the meeting shall
be chosen by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of stockholders
shall be as determined by the chairman of the meeting, but the order of business
to be followed at any meeting at which a quorum is present may be changed by a
majority of the votes cast at such meeting by the holders of shares of capital
stock present in person or represented by proxy and entitled to vote at the
meeting.
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ARTICLE 3
DIRECTORS
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3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by law or by the Certificate of
Incorporation, the By-laws, the Constitution of the New York Stock Exchange,
Inc. or the Rules of the Board of Directors of the New York Stock Exchange,
Inc., to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of not fewer
than eight (8) nor more than forty (40) members (provided, however, that such
maximum number may be increased from time to time to the extent provided in any
resolution or resolutions adopted by the Board providing for the issuance of any
series of Preferred Stock pursuant to Article V of the Certificate of
Incorporation) and within such limits the number of directors shall be
determined, and may be changed from time to time, solely by resolution adopted
by the affirmative vote of a majority of the Whole Board. Directors need not be
stockholders. Each director shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal.
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3.3 Election. Directors shall, except as otherwise required by law or by the
Certificate of Incorporation, be elected by a plurality of the votes cast at a
meeting of stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided in the
Certificate of Incorporation, any vacancy in the Board caused by death,
resignation, removal, disqualification or any other cause (other than an
increase in the number of directors) may be filled solely by the affirmative
vote of a majority of the directors then in office, though less than a quorum of
the Whole Board, or by a sole remaining director; and a majority of the Whole
Board may fill a vacancy which results from an increase in the number of
directors. A director elected to fill a vacancy shall be elected to hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written notice to the
Corporation. Such resignation shall take effect at the time therein specified,
and, unless otherwise specified, the acceptance of such resignation shall not be
necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section 141(k) of the
General Corporation Law, any or all of the directors may be removed with or
without cause, by the holders of a majority of the shares then entitled to vote
in an election of directors.
3.7 Compensation. Each director, in consideration of his service as such, shall
be entitled to receive from the Corporation such amount per annum or such fees
for attendance at directors' meetings, or both, as the Board may from time to
time determine, together with reimbursement for the reasonable expenses incurred
by him in connection with the performance of his duties. Each director who shall
serve as a member of any committee of directors in consideration of his serving
as such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable expenses incurred by
him in the performance of his duties. Nothing contained in this section shall
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation therefor.
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3.8 Place and Time of Meetings. Meetings of the Board or any committee thereof,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board or any
committee thereof may be fixed from time to time by resolution of the Board or
(unless contrary to resolution of the Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual meeting
of stockholders for the election of directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 3.11
of the By-laws for special meetings of the Board or in a waiver of notice
thereof.
3.10 Regular Meetings. Regular meetings of the Board or any committee thereof
may be held at such times and places as may be fixed from time to time by the
Board. Unless otherwise required by the Board, regular meetings of the Board or
any committee thereof may be held without notice and (unless contrary to
resolution of the Board) shall be held at the Corporation's principal executive
offices. If any day fixed for a regular meeting of the Board or any committee
thereof shall be a Saturday or Sunday or a day on which trading is not conducted
by the New York Stock Exchange, Inc., then such meeting shall be held at the
same hour at the same place on the first business day thereafter which is not a
Saturday, Sunday or a day on which trading is not conducted by the New York
Stock Exchange, Inc.
3.11 Special Meetings. Special meetings of the Board or any committee thereof
shall be held whenever called by the Chairman, the Chief Executive Officer or
the Secretary or by any two or more directors in the case of the Board, or in
the case of any committee, its chairman or any two members thereof. Notice of
each special meeting of the Board or any committee thereof shall, if mailed, be
addressed to each director at the address designated by him for that purpose or,
if none is designated, at his last known address at least two days before the
date on which the meeting is to be held; or such notice shall be sent to each
director at such address by telegraph, cable, wireless or facsimile
communication, or be delivered to him personally, not later than the day before
the date on which such meeting is to be held. Every such notice shall state the
time and place of the meeting but need not state the purposes of the meeting,
except to the extent required by law. If mailed, each notice shall be deemed
given when deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States Postal
Service. Such mailing shall be by first class mail.
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3.12 Adjourned Meetings. A majority of the directors or committee members
present at any meeting of the Board or any committee thereof, as the case may
be, including an adjourned meeting, whether or not a quorum is present, may
adjourn such meeting to another time and place. Notice of any adjourned meeting
of the Board or any committee thereof need not be given to any director, or
committee member, whether or not present at the time of the adjournment. Any
business may be transacted at any adjourned meeting that might have been
transacted at the meeting as originally called.
3.13 Waiver of Notice. Whenever notice is required to be given to any director
or member of a committee of directors under any provision of the General
Corporation Law or of the Certificate of Incorporation or By-laws, a written
waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the directors, or a
committee of directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the officers specified in
Article 5 hereof (or, in the absence of all officers designated in Article 5
hereof so to act, another director chosen by a majority of the directors
present) shall act as chairman of the meeting and preside thereat. The Secretary
shall act as secretary at each meeting of the Board. In case the Secretary shall
be absent from any meeting of the Board, an Assistant Secretary shall perform
the duties of secretary at such meeting; and in the absence from any such
meeting of the Secretary and all Assistant Secretaries, the person presiding at
the meeting may appoint any person to act as secretary of the meeting.
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3.15 Quorum of Board or Committee. Except as otherwise provided by law, by the
Certificate of Incorporation or elsewhere in these By-laws, (a) a majority of
the directors in office at the time shall constitute a quorum for the
transaction of business, or of any specified item of business, at any meeting of
the Board and (b) a majority of the members of any committee shall constitute a
quorum for the transaction of business of such committee, or of any specified
item of business, at any meeting of such committee.
3.16 Action by the Board; Attendance by Conference Telephone, Etc. All corporate
action taken by the Board or any committee thereof shall be taken at a meeting
of the Board, or of such committee, as the case may be, except that 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.
Members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.16 shall constitute presence in person at
such meeting. Except as otherwise provided by law, by the Certificate of
Incorporation or these By-laws, the vote of a majority of the directors or
committee members present (including those who participate by means of a
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board or such
committee.
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Article 4A
COMMITTEES OF THE CORPORATION
-----------------------------
The Board may, by resolution passed by a majority of the Whole Board, designate
one or more committees of the Corporation, each committee to consist of one or
more of the directors or officers of the Corporation or one or more of the
directors or officers of the Corporation's wholly-owned subsidiary, Bear,
Stearns & Co. Inc., as the Board shall determine. A member of any committee of
the Corporation may be removed with or without cause by action taken by a
majority of the Whole Board. Each such committee shall have and may exercise
such powers, authority and responsibilities as the Board shall determine and as
may be properly granted to such committee under the laws of the state of
Delaware, the Certificate of Incorporation and these By-laws. The powers,
authority and responsibilities thereby granted may include those that may be
delegated to officers of the Corporation.
Article 4
COMMITTEES OF THE BOARD
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The Board may, by resolution passed by a majority of the Whole Board, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. 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. A member of any committee of the Board
may be removed with or without cause by action taken by a majority of the Whole
Board. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority 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; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law to be submitted to stockholders for approval or (ii)
adopting, amending or repealing any By-law of the Corporation.
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ARTICLE 5
OFFICERS
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5.1 Officers. The Board shall elect a Chairman of the Board, a Chief Executive
Officer, one or more Presidents (who shall share the duties and responsibilities
of the position), one or more Chief Operating Officers (who shall share the
duties and responsibilities of the position), a Chief Financial Officer, a Chief
Administrative Officer, a Secretary, a Treasurer and a Controller, and may elect
or appoint one or more Vice Presidents and one or more Managing Directors (who
need not be, and unless otherwise properly elected thereto, shall not be,
members of the Board) and such other officers (including Assistant Secretaries
and Assistant Treasurers) as the Board may determine. The Board may designate
one or more Vice Presidents as Executive Vice Presidents, Senior Vice Presidents
or First Vice Presidents, and may use other descriptive words or phrases to
designate the standing, seniority or area of special competence of the Vice
Presidents and Managing Directors elected or appointed by it. The Board may from
time to time elect, or delegate to any one or more officers the power to
appoint, such other officers as may be necessary or desirable for the business
of the Corporation. Each officer shall hold his office until his successor is
elected and qualified or until his earlier death, resignation or removal in the
manner provided in Section 5.2 of the By-laws. Any two or more offices may be
held by the same person, but no officers shall execute, acknowledge or verify
any instrument in more than one capacity if such instrument is required by law
or by the By-laws to be executed, acknowledged, or verified by two or more
officers. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties as
the Board may determine. All officers as between themselves and the Corporation
shall have such authority and perform such duties in the management of the
Corporation as may be provided in the By-laws or as the Board or any appointing
authority may from time to time determine.
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5.2 Removal of Officers. Any officer of the Corporation may be removed, with or
without cause, by the Board or, except in the case of an officer elected or
appointed by the Board, by any officer to whom the Board shall have delegated
the power to appoint such officer being removed. The removal of an officer
without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying the Board
or the Chairman of the Board or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled for the unexpired portion of
the term in the manner prescribed in the By-laws for the regular election or
appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may be fixed
from time to time by the Board. No officer shall be prevented from receiving a
salary or other compensation by reason of the fact that he is also a director.
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5.6 Chairman of the Board. The Chairman of the Board, if present, shall preside
at each meeting of the stockholders and of the Board. He shall perform all
duties incident to the office of Chairman of the Board and such other duties as
from time to time may be assigned to him by the Board.
5.7 Chief Executive Officer. The Chief Executive Officer shall be the chief
executive officer of the Corporation and shall have general supervision over the
business of the Corporation, subject, however, to the control of the Board and
of any duly authorized committee of directors. The Chief Executive Officer, in
the absence of the Chairman of the Board, shall preside at each meeting of the
stockholders and of the Board. He may, with the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer, sign certificates for shares of
capital stock of the Corporation. He may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments, except in
cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed; and, in general,
shall perform all duties incident to the office of Chief Executive Officer and
such other duties as from time to time may be assigned to him by the Board or by
the By-laws.
5.8 The President(s).The President or any one or more of the Presidents shall
assist the Chief Executive Officer in the management of and supervision and
direction over the business and affairs of the Corporation, subject, however, to
the direction of the Chief Executive Officer and the control of the Board. The
President or any one or more of the Presidents may, in the absence of the
Chairman of the Board and the Chief Executive Officer, preside, if present, at
each meeting of the stockholders and of the Board. The President or any one or
more of the Presidents may, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; and, in general, shall perform all duties incident to
the office of President and such other duties as from time to time may be
assigned by the Board, by the By-laws, or by the Chief Executive Officer.
5.9 The Chief Operating Officer(s). The Chief Operating Officer or any one or
more of the Chief Operating Officers shall be chief operating officers of the
Corporation, and shall assist the Chief Executive Officer and the President or
any one or more of the Presidents in the active management of and supervision
and direction over the business and affairs of the Corporation, subject, however
to the direction of the Chief Executive Officer, the President or any one or
more of the Presidents and the control of the Board. In the absence of the
Chairman of the Board, the Chief Executive Officer and the President(s), the
Chief Operating Officer or any one or more of the Chief Operating Officers shall
preside at each meeting of the stockholders and of the Board. The Chief
Operating Officer or any one or more of the Chief Operating Officers may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. The
Chief Operating Officer or any one or more of the Chief Operating Officers may
sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, shall perform all duties incident to
the office of Chief Operating Officer and such other duties as from time to time
may be assigned by the Board, by the By-laws or by the Chief Executive Officer.
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5.10 Chief Financial Officer. The Chief Financial Officer shall be the chief
financial officer of the Corporation, and shall render to the Board, whenever
the Board may require, an account of the financial condition of the Corporation;
shall make, sign and file financial, tax and similar reports to any state,
federal or municipal government, agency or department, or any self-regulatory
organization; shall provide for the continuous review of all accounts and
reports; and shall perform such other duties as from time to time may be
assigned to him by the Board or the Chief Executive Officer.
5.11 Chief Administrative Officer. The Chief Administrative Officer shall be the
principal administrative officer of the Corporation and shall assist the Chief
Operating Officer(s) in the provision of such administrative and support
services as are necessary or appropriate for the conduct of the business and the
affairs of the Corporation, subject to the direction of the Chief Operating
Officer(s) and the Chief Executive Officer and the control of the Board of
Directors. In addition, the Chief Administrative Officer shall perform such
other duties as from time to time may be assigned to him by the Board or by the
Chief Operating Officer(s).
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5.12 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the Chief Executive Officer, the President or any one or
more of the Presidents or the Chief Operating Officer or any one or more of the
Chief Operating Officers, sign certificates for shares of capital stock of the
Corporation; he shall be custodian of the seal of the Corporation and may seal
with the seal of the Corporation, or a facsimile thereof, all certificates for
shares of capital stock of the Corporation and all documents the execution of
which on behalf of the Corporation under its corporate seal is authorized in
accordance with the provisions of the By-laws; he shall have charge of the stock
ledger and also of the other books, records and papers of the Corporation
relating to its organization and management as a Corporation, and shall see that
the reports, statements and other documents required by law are properly kept
and filed; and, in general, shall 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 Chief Executive Officer.
5.13 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with the By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; may, with the Chief Executive Officer, the President or any one or
more of the Presidents or the Chief Operating Officer or any one or more of the
Chief Operating Officers, sign certificates for shares of capital stock of the
corporation; and, in general, shall perform all the duties incident to the
office of the Treasurer and such other duties as from time to time may be
assigned to him by the Board or by the Chief Executive Officer.
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5.14 Vice President. Each Executive Vice President, Senior Vice President, First
Vice President and Vice President shall have such powers and perform such duties
as the Board or the Chief Executive Officer from time to time may prescribe, and
shall perform such other duties as may be prescribed in the By-laws.
5.15 Controller. The Controller shall be the chief accounting officer of the
Corporation and shall cause to be maintained adequate records of all assets,
liabilities and transactions of the Corporation; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
have control of all the books of account of the Corporation; and shall perform
such other duties as from time to time may be assigned to him by the Board or by
the Chief Executive Officer.
5.16 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and
Assistant Treasurers shall perform such duties as shall be assigned to them by
the Secretary or by the Treasurer, respectively, or by the Board or by the Chief
Executive Officer. Assistant Secretaries and Assistant Treasurers may, with the
Chief Executive Officer, the President or any one or more of the Presidents or
the Chief Operating Officer or any one or more of the Chief Operating Officers,
sign certificates for shares of capital stock of the Corporation.
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ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer, employee or
agent, in the name and on behalf of the Corporation, to enter into any contract
or execute and satisfy any instrument, and any such authority may be general or
confined to specific instances, or otherwise limited.
6.2 Loans. The Chairman of the Board, the Chief Executive Officer, the President
or any one or more of the Presidents, the Chief Operating Officer or any one or
more of the Chief Operating Officers, the Chief Financial Officer or the
Treasurer or any other officer, employee or agent authorized by the By-laws or
by the Board may effect loans and advances at any time for the Corporation from
any bank, trust company or other institutions 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 evidences of indebtedness of
the Corporation and, when authorized by the Board so to do, may pledge and
hypothecate or transfer any securities or other property of the Corporation as
security for any such loans or advances. Such authority conferred by the Board
may be general or confined to specific instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and 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 on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation in such banks, trust
companies or other depositaries as the Board may select or as may be selected by
an officer, employee or agent of the Corporation to whom such power may from
time to time be delegated by the Board.
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ARTICLE 7
STOCK AND DIVIDEND
------------------
7.1 Certificates Representing Shares. The shares of capital stock of the
Corporation shall be represented by certificates in such form (consistent with
the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chief Executive
Officer, the President or any one or more of the Presidents or the Chief
Operating Officer or any one or more of the Chief Operating Officers and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
and may be sealed with the seal of the Corporation or a facsimile thereof. The
signatures of the officers upon a certificate may be facsimiles, if the
certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the Corporation
shall be made only on the books of the Corporation by the holder thereof or by
his duly authorized attorney appointed by a power of attorney duly executed and
filed with the Secretary or a transfer agent of the Corporation, and on
surrender of the certificate or certificates representing such shares of capital
stock properly endorsed for transfer and upon payment of all necessary transfer
taxes. Every certificate exchanged, returned or surrendered to the Corporation
shall be marked "Cancelled," with the date of cancellation, by the Secretary or
an Assistant Secretary or the transfer agent of the Corporation. A person in
whose name shares of capital stock shall stand on the books of the Corporation
shall be deemed the owner thereof to receive dividends, to vote as such owner
and for all other purposes as respects the Corporation. No transfer of shares of
capital stock shall be valid as against the Corporation, its stockholders and
creditors for any purpose, except to render the transferee liable for the debts
of the Corporation to the extent provided by law, until such transfer shall have
been entered on the books of the Corporation by an entry showing from and to
whom transferred.
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7.3 Transfer and Registry Agents. The Corporation may from time to time maintain
one or more transfer offices or agents and registry offices or agents at such
place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any shares
of capital stock of the Corporation shall immediately notify the Corporation of
any loss, destruction, theft or mutilation of the certificate representing such
shares, and the Corporation may issue a new certificate to replace the
certificate alleged to have been lost, destroyed, stolen or mutilated. The Board
may, in its discretion, as a condition to the issue of any such new certificate,
require the owner of the lost, destroyed, stolen or mutilated certificate, or
his legal representatives, to make proof satisfactory to the Board of such loss,
destruction, theft or mutilation and to advertise such fact in such manner as
the Board may require, and to give the Corporation and its transfer agents and
registrars, or such of them as the Board may require, a bond in such form, in
such sums and with such surety or sureties as the Board may direct, to indemnify
the Corporation and its transfer agents and registrars against any claim that
may be made against any of them on account of the continued existence of any
such certificate so alleged to have been lost, destroyed, stolen or mutilated
and against any expense in connection with such claim.
7.5 Regulations. The Board may make such rules and regulations as it may deem
expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
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7.6 Restriction on Transfer of Stock. A written restriction on the transfer or
registration of transfer of capital stock of the Corporation, if permitted by
Section 202 of the General Corporation Law and noted conspicuously on the
certificate representing such capital stock, may be enforced against the holder
of the restricted capital stock or any successor or transferee of the holder,
including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
Unless noted conspicuously on the certificate representing such capital stock, a
restriction, even though permitted by Section 202 of the General Corporation
Law, shall be ineffective except against a person with actual knowledge of the
restriction. A restriction on the transfer or registration of transfer of
capital stock of the Corporation may be imposed either by the Certificate of
Incorporation or by an agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of law and of the
Certificate of Incorporation, the Board:
7.7.1 May declare and pay dividends or make other distributions on shares of its
capital stock in such amounts and at such time or times as, in its discretion,
the condition of the affairs of the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants therefor, in accordance with law, or any of
its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness; and
7.7.3 May set aside from time to time out of such surplus or net profits such
sum or sums as, in its discretion, it may think proper, as a reserve fund to
meet contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any purpose it may think conducive to the best interests of the Corporation.
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ARTICLE 8
BOOKS AND RECORDS
-----------------
8.1 Books and Records. The Corporation shall keep correct and complete books and
records of account and shall keep minutes of the proceedings of the
stockholders, the Board and committees of the Board. The Corporation shall keep
at the office designated in the Certificate of Incorporation or at the office of
the transfer agent or registrar of the Corporation, a record containing the
names and addresses of all stockholders, the number and class of shares held by
each and the dates when they respectively became the owners of record thereof.
8.2 Form of Records. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible written form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
8.3 Inspection of Books and Records. Except as otherwise provided by law, the
Board shall determine from time to time whether, and, if allowed, when and under
what conditions and regulations, the accounts, books, minutes and other records
of the Corporation, or any of them, shall be open to the inspection of the
stockholders.
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ARTICLE 9
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a circle and
shall bear the full name of the Corporation, the year of its incorporation and
the word "Delaware."
ARTICLE 10
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be changed, by
resolution of the Board.
ARTICLE 11
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, each of the Chief
Executive Officer, the President or any one or more of the Presidents, the Chief
Operating Officer or any one or more of the Chief Operating Officers, the Chief
Financial Officer and such other officer or officers as from time to time are so
authorized by resolution of the Board or an appropriate committee thereof, may,
from time to time, appoint one or more attorneys 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 a stockholder or otherwise in any other
corporation, any of whose shares or securities may be held by the Corporation,
at meetings of the holders of stock or other securities of such other
corporation, or to consent in writing to any action by any 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 on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; and each of the Chief Executive
Officer, the President or any one or more of the Presidents, the Chief Operating
Officer or any one or more of the Chief Operating Officers, the Chief Financial
Officer and such other officer or officers as from time to time are so
authorized by resolution of the Board or any appropriate committee thereof, may
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
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ARTICLE 12
AMENDMENTS
----------
The Board, from time to time, may make, amend or repeal the By-laws; provided,
that any By-laws made, amended or repealed by the Board may be amended or
repealed, and that any By-laws may be made, by the Stockholders.
ARTICLE 13
APPLICATION OF SECTION 203
OF GENERAL CORPORATION LAW
--------------------------
Pursuant to paragraph (b) (2) of Section 203 of the General Corporation Law, the
Corporation elects not to be governed by such Section 203.
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