BY-LAWS
OF
CINERGY CORP.
Adopted: October 24, 1994
TABLE OF CONTENTS
Page
ARTICLE I
Offices and Headquarters
Section 1.1 Offices. . . . . . . . . . . . . . . . . . . 1
Section 1.2 Headquarters . . . . . . . . . . . . . . . . 1
ARTICLE II
Stockholders
Section 2.1 Annual Meeting . . . . . . . . . . . . . . . 2
Section 2.2 Special Meetings . . . . . . . . . . . . . . 4
Section 2.3 Notice of Meetings . . . . . . . . . . . . . 4
Section 2.4 Quorum . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Voting . . . . . . . . . . . . . . . . . . . 6
Section 2.6 Presiding Officer and Secretary. . . . . . . 6
Section 2.7 Proxies. . . . . . . . . . . . . . . . . . . 7
Section 2.8 List of Stockholders . . . . . . . . . . . . 7
ARTICLE III
Directors
Section 3.1 Number of Directors. . . . . . . . . . . . . 8
Section 3.2 Election and Term of Directors . . . . . . . 9
Section 3.3 Vacancies and Newly Created Directorships. . 12
Section 3.4 Resignation. . . . . . . . . . . . . . . . . 12
Section 3.5 Meetings . . . . . . . . . . . . . . . . . . 13
Section 3.6 Quorum and Voting. . . . . . . . . . . . . . 14
Section 3.7 Written Consent of Directors in Lieu of a
Meeting. . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.8 Compensation . . . . . . . . . . . . . . . . 15
Section 3.9 Contracts and Transactions Involving
Directors. . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
Committees of the Board of Directors
Section 4.1 Appointment and Powers . . . . . . . . . . . 16
ARTICLE V
Officers, Agents and Employees
Section 5.1 Appointment and Term of Office . . . . . . . 18
Section 5.2 The Chairman of the Board. . . . . . . . . . 19
Section 5.3 Vice-Chairman. . . . . . . . . . . . . . . . 20
Section 5.4 Chief Executive Officer. . . . . . . . . . . 20
Section 5.5 The President. . . . . . . . . . . . . . . . 21
Section 5.6 The Vice-Presidents. . . . . . . . . . . . . 21
Section 5.7 The Secretary. . . . . . . . . . . . . . . . 22
Section 5.8 The Treasurer. . . . . . . . . . . . . . . . 23
Section 5.9 The Comptroller. . . . . . . . . . . . . . . 24
Section 5.10 Compensation and Bond . . . . . . . . . . . 25
ARTICLE VI
Indemnification
Section 6.1 Indemnification of Directors, Officers,
Employees and Agents . . . . . . . . . . . . . . . . 25
Section 6.2 Advances for Litigation Expenses . . . . . . 28
Section 6.3 Indemnification Nonexclusive . . . . . . . . 29
Section 6.4 Indemnity Insurance. . . . . . . . . . . . . 29
Section 6.5 Definitions. . . . . . . . . . . . . . . . . 30
ARTICLE VII
Common Stock
Section 7.1 Certificates . . . . . . . . . . . . . . . . 31
Section 7.2 Transfers of Stock . . . . . . . . . . . . . 32
Section 7.3 Lost, Stolen or Destroyed Certificates . . . 32
Section 7.4 Stockholder Record Date. . . . . . . . . . . 33
Section 7.5 Beneficial Owners. . . . . . . . . . . . . . 34
ARTICLE VIII
Seal
Section 8.1 Seal . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IX
Waiver of Notice
Section 9.1 Waiver of Notice . . . . . . . . . . . . . . 35
ARTICLE X
Fiscal Year
Section 10.1 Fiscal Year.. . . . . . . . . . . . . . . . 36
ARTICLE XI
Contracts, Checks, Notices, Etc.
Section 11.1 Contracts, Checks, Notices, Etc.. . . . . . 36
ARTICLE XII
Amendments
Section 12.1 Amendments. . . . . . . . . . . . . . . . . 37
ARTICLE XIII
Dividends
Section 13. Dividends. . . . . . . . . . . . . . . . . . 38
BY-LAWS
OF
CINERGY CORP. (THE "CORPORATION")
ARTICLE I
Offices and Headquarters
Section 1.1 Offices. The location of the
Corporation's principal office shall be in the City of
Cincinnati, County of Hamilton, State of Ohio. The Corporation
may, in addition to the aforesaid principal office, establish and
maintain an office or offices elsewhere in Delaware, Ohio or
Indiana or in such other states and places as the Board of
Directors may from time to time find necessary or desirable, at
which office or offices the books, documents, and papers of the
Corporation may be kept.
Section 1.2 Headquarters. Subject to the sentence
next following, the Corporation's headquarters and executive
offices, shall be located in the City of Cincinnati, County of
Hamilton, State of Ohio. The location of the Corporation's
headquarters and executive offices may be changed from the City
of Cincinnati, County of Hamilton, State of Ohio only by the
affirmative vote of 80% of the full Board of Directors of the
Corporation and not by the vote of any committee of the Board of
Directors. As used in these By-Laws, the term "the full Board of
Directors" shall mean all directors then in office together with
any vacancies, however created. For the avoidance of doubt and
as an example only, if the Board of Directors consists of 17
members and two vacancies exist, the affirmative vote of 14 of
the 15 members of the Corporation's Board of Directors then in
office would be required to authorize a change in location of the
Corporation's headquarters and executive offices. The
headquarters and executive offices of the Corporation's
subsidiary, PSI Energy, Inc., shall be located in the City of
Plainfield, Indiana and the headquarters and executive offices of
the Corporation's subsidiary, The Cincinnati Gas & Electric
Company, shall be located in the City of Cincinnati, Ohio.
ARTICLE II
Stockholders
Section 2.1 Annual Meeting. An annual meeting of
stockholders of the Corporation for the election of directors and
for the transaction of any other proper business shall be held at
such time and date in each year as the Board of Directors may
from time to time determine. The annual meeting in each year
shall be held at such hour on said day and at such place within
or without the State of Delaware as may be fixed by the Board of
Directors, or if not so fixed, at the principal business office
of the Corporation in the City of Cincinnati, County of Hamilton,
State of Ohio. In addition to all other applicable requirements
for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than 60 days nor more than 90 days prior to the annual
meeting; provided, however, that in the event that less than 70
days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the
stockholders to be timely must be so received not later than the
close of business on the fifteenth day following the date on
which such notice of the date of annual meeting was mailed or
such public disclosure was made whichever first occurs. A
stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual
meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the annual meeting; (ii) the name and record
address of the stockholder proposing such business; (iii) the
class and number of shares of the Corporation which are
beneficially owned by the stockholder; and (v) any material
interest of the stockholder in the business.
Notwithstanding anything to the contrary in the By-
Laws, no business shall be conducted at the annual meeting except
in accordance with the procedures set forth in this Section 2.1;
provided, however, that nothing in this Section 2.1 shall be
deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting.
Section 2.2 Special Meetings. A special meeting of
the stockholders of the Corporation entitled to vote on any
business to be considered at any such meeting may be called by
the Chairman of the Board or the President or by a majority of
the members of the Board of Directors then in office, acting with
or without a meeting, or by the persons who hold 50% of all
shares outstanding and entitled to vote thereat upon notice in
writing, stating the time, place and purpose of the special
meeting. The business transacted at the special meeting shall
be confined to the purposes and objects stated in the call.
Section 2.3 Notice of Meetings. Whenever stockholders
are required or permitted to take any action at a meeting, unless
notice is waived in writing by all stockholders entitled to vote
at the meeting, a written notice of the meeting shall be given
which shall state 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.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any
meeting shall be given personally or by mail, not less than 10
days nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed given when deposited in the mail, postage
prepaid, directed to the stockholder at his or her address as it
appears on the records of the Corporation.
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. At the adjourned meeting the Corporation
may transact any business which might have been transacted at the
original meeting. If, however, the adjournment is for more than
30 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 2.4 Quorum. Except as otherwise provided by
law or by the Certificate of Incorporation or by these By-Laws in
respect of the vote required for a specified action, at any
meeting of stockholders the holders of a majority of the
outstanding stock entitled to vote thereat, either present, in
person or represented by proxy, shall constitute a quorum for the
transaction of any business, but the stockholders present,
although less than a quorum, may adjourn the meeting to another
time or place and, except as provided in the last paragraph of
Section 2.3 of these By-Laws, notice need not be given of the
adjourned meeting.
Section 2.5 Voting. Whenever directors are to be
elected at a meeting, they shall be elected by a plurality of the
votes cast at the meeting by the holders of stock entitled to
vote. Whenever any corporate action, other than the election of
directors, is to be taken by vote of stockholders at a meeting,
it shall, except as otherwise required by law or by the
Certificate of Incorporation or by these By-Laws, be authorized
by a majority of the votes cast at the meeting by the holders of
stock entitled to vote thereon.
Except as otherwise provided by law, or by the
Certificate of Incorporation, each holder of record of stock of
the Corporation entitled to vote on any matter at any meeting of
stockholders shall be entitled to one (1) vote for each share of
such stock standing in the name of such holder on the stock
ledger of the Corporation on the record date for the
determination of the stockholders entitled to vote at the
meeting.
Upon the demand of any stockholder entitled to vote,
the vote for directors or the vote on any other matter at a
meeting shall be by written ballot, but otherwise the method of
voting and the manner in which votes are counted shall be
discretionary with the presiding officer at the meeting.
Section 2.6 Presiding Officer and Secretary. At every
meeting of stockholders the Chairman of the Board, or, in his or
her absence, the President, or, in his or her absence, the
appointee of the meeting, shall preside. The Secretary, or, in
his or her absence an Assistant Secretary, or if none be present,
the appointee of the presiding officer of the meeting, shall act
as secretary of the meeting.
Section 2.7 Proxies. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer
period. Every proxy shall be signed by the stockholder or by his
duly authorized attorney. A stockholder may authorize another
person or persons to act for him as proxy by transmitting or
authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the
holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission if such transmission is submitted with information
from which it may be determined that the transmission was
authorized by the stockholder.
Section 2.8 List of Stockholders. The officer who has
charge of the stock ledger of the Corporation shall prepare and
make, at least 10 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
10 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.
The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the
list required by this Section or the books of the Corporation, or
to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
Directors
Section 3.1 Number of Directors. The Board of
Directors shall consist of 17 directors. This number may be
changed to an odd number not less than 15 and not more than 23
by a vote of not less than 75% of the full Board of Directors
("Supermajority Vote"). Any such determination made by the Board
of Directors shall continue in effect unless and until changed by
the Board of Directors by Supermajority Vote, but no such change
shall affect the term of any director then in office.
Section 3.2 Election and Term of Directors. Only
persons who are nominated in accordance with the following
procedures shall be eligible for election as directors. Except
as may be required by applicable law, no person who is, at the
time of nomination, 70 years of age or older shall be eligible
for election as a director. Nominations of persons as candidates
for election as directors of the Corporation may be made at a
meeting of stockholders (i) by or at the direction of the Board
of Directors acting by Supermajority Vote (or by a unanimous vote
of the remaining directors if a Supermajority Vote is not
obtainable because the number of vacancies on the Board of
Directors); or (ii) by any stockholder of the Corporation
entitled to vote for the election of directors at such meeting
who complies with the notice procedures set forth herein. Any
nomination other than those governed by clause (i) of the
preceding sentence shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received
at the principal office of the Corporation in the State of Ohio
not less than 50 days prior to the meeting; provided, however,
that if less than 60 days' notice or prior public disclosure of
the date of the meeting is given to stockholders or made public,
to be timely notice by a stockholder must be so received not
later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice to
the Secretary shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election as director: (i)
the name, age, business address, and residence address of such
person; (ii) the principal occupation or employment of such
person; (iii) the class and number of any shares of capital stock
of the Corporation that are beneficially owned by such person;
and (iv) any other information relating to such person that is
required to be disclosed in solicitations for proxies for the
election of directors pursuant to any then existing rules or
regulations promulgated under the Securities Exchange Act of
1934, as amended; and (b) as to the stockholder giving notice:
(i) the name and record address of such stockholder; (ii) the
class and number of shares of capital stock of the Corporation
that are beneficially owned by such stockholder, and (iii) the
period of time such stockholder has held such shares. The
Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee
to serve as a director. No person otherwise eligible for
election as a director shall be eligible for election as a
director unless nominated as set forth herein.
Commencing on October 24, 1994 (the "Classification
Date") of the Board of Directors of the Corporation, the terms of
office of the Board of Directors shall be divided into three (3)
classes, Class I, Class II and Class III, as determined by the
Board of Directors. All classes shall be as nearly equal in
number as possible.
The terms of office of directors classified shall be as
follows: (1) that of Class I shall expire at the annual meeting
of stockholders that occurs within the first year after the
Classification Date, (2) that of Class II shall expire at the
annual meeting of stockholders that occurs within the second year
after the Classification Date, and (3) that of Class III shall
expire at the annual meeting of stockholders that occurs within
the third year after the Classification Date. At each annual
meeting of stockholders after the Classification Date, the
successors to directors whose terms shall expire shall be elected
to serve from the time of election and qualification until the
third annual meeting following election and until a successor
shall have been elected and qualified or until his earlier
resignation, removal from office or death. As being under 70
years of age constitutes a continuing qualification for service
on the Board of Directors, any director who reaches the age of 70
years while in office shall, except as limited by applicable law,
promptly resign from the Corporation's Board of Directors.
Section 3.3 Vacancies and Newly Created Directorships.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by
election at a meeting of stockholders. Except as otherwise
provided by law, and notwithstanding the provision of Section
3.6, the remaining directors, whether or not constituting a
majority of the whole authorized number of directors, may, by not
less than a Supermajority Vote (or by a unanimous vote of the
remaining directors if a Supermajority Vote is not obtainable
because of the number of vacancies on the Board of Directors)
fill any vacancy in the Board, however arising, for the unexpired
term thereof. Any person elected to fill a vacancy in the Board
shall hold office until the expiration of the term of office for
the class to which he or she is elected and until a successor is
elected and qualified or until his or her earlier resignation,
removal from office or death.
Section 3.4 Resignation. Any director may resign at
any time upon written notice to the Corporation. Any such
resignation shall take effect at the time specified therein or,
if the time be not specified, upon receipt thereof, and the
acceptance of such resignation, unless required by the terms
thereof, shall not be necessary to make such resignation
effective.
Section 3.5 Meetings. Meetings of the Board of
Directors, regular or special, may be held at any place within or
without the State of Delaware. Members of the Board of
Directors, or of any committee designated by the Board, may
participate in a meeting of such Board or 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 participation in a meeting by such means shall
constitute presence in person at such meeting. An annual meeting
of the Board of Directors shall be held after each annual
election of directors. If such election occurs at an annual
meeting of stockholders, the annual meeting of the Board of
Directors shall be held at the same place and immediately
following such meeting of stockholders, and no notice thereof
need be given. The Board of Directors may fix times and places
for regular meetings of the Board and no notice of such meetings
need be given. A special meeting of the Board of Directors shall
be held whenever called by the Chairman of the Board, the
President or by the written request of at least two (2) members
of the Board of Directors, at such time and place as shall be
specified in the notice or waiver thereof. Notice of each
special meeting shall be given by the Secretary or by a person
calling the meeting to each director in writing, through the
mail, not later than the second day before the meeting, or
personally served or by telephone, telecopy, telegram, cablegram
or radiogram, in each such cases, not later than the day before
the meeting, and such notice shall be deemed to be given at the
time when the same shall be transmitted.
Section 3.6 Quorum and Voting. A majority of the full
Board of Directors shall constitute a quorum for the transaction
of business, but, if there be less than a quorum at any meeting
of the Board of Directors, a majority of the directors present
may adjourn the meeting from time to time, and no further notice
thereof need be given other than announcement at the meeting
which shall be so adjourned. Except as otherwise provided by
law, by the Certificate of Incorporation, or by these By-Laws
(including, without limitation, where any Supermajority Vote or
any other vote in excess of a majority is required), the vote of
a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 3.7 Written Consent of Directors in Lieu of a
Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all members of the Board or of such
committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 3.8 Compensation. Each director of the
Corporation (other than directors who are salaried officers of
the Corporation or any of its subsidiaries) shall be entitled to
receive as compensation for services such reasonable
compensation, which may include pension, disability and death
benefits, as may be determined from time to time by the Board of
Directors. Reasonable compensation may also be paid to any
person other than a director officially called to attend any such
meeting.
Section 3.9 Contracts and Transactions Involving
Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his,
her or their votes are counted for such purpose, if: (1) the
material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or
(2) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
Committees of the Board of Directors
Section 4.1 Appointment and Powers. The Board of
Directors shall, by resolution adopted by a majority of the
Board, designate annually (subject to Article V hereof) six of
their number to constitute an Executive Committee, and may
delegate to such committee power to authorize the seal of the
Corporation to be affixed to all papers which may require it and
to exercise in the intervals between the meetings of the Board of
Directors the powers of the Board in the management of the
business and affairs of the Corporation; provided, however, that
the Executive Committee shall not have the power or authority to
take any action for which a Supermajority Vote or other vote in
excess of a majority of the Board of Directors is required. Each
member of the Executive Committee shall continue to be a member
thereof only during the pleasure of a majority of the full Board
of Directors.
The Executive Committee may act by a majority of its
members at a meeting or by a writing signed by all of its
members.
All action by the Executive Committee shall be reported
to the Board of Directors at its meeting next succeeding such
action.
Non-employee members of such Executive Committee shall
be entitled to receive such fees and compensation as the Board of
Directors may determine.
The Board of Directors may also appoint a Finance
Committee, a Committee on Directors, an Audit Committee, a Public
Policy Committee and a Compensation Committee and may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or
any part of their own powers (subject to the provisions of these
By-Laws); provided, however, that any compensation or benefits to
be paid to an executive officer who is also a director must be
approved by the Board of Directors. The members of such
committees shall be entitled to receive such fees as the Board
may determine.
The Board of Directors shall not amend, modify, vary or
waive any of the terms of the Amended and Restated Agreement and
Plan of Reorganization by and among The Cincinnati Gas & Electric
Company, PSI Resources, Inc., PSI Energy, Inc., the Corporation,
CINergy Corp., an Ohio corporation, and CINergy Sub, Inc. dated
as of December 11, 1992, as amended and restated as of July 2,
1993 and as of September 10, 1993 and as further amended as of
June 20, 1994, as of July 26, 1994 and as of September 30, 1994
(the "Merger Agreement") other than by a Supermajority Vote of
the Board of Directors.
ARTICLE V
Officers, Agents and Employees
Section 5.1 Appointment and Term of Office. The
executive officers of the Corporation, shall consist of a
Chairman of the Board, a Vice-Chairman, a Chief Executive
Officer, a President, one or more Vice-Presidents, a Secretary, a
Treasurer and a Comptroller, all of whom shall be elected by the
Board of Directors by a Supermajority Vote, and shall hold office
for one (1) year and until their successors are chosen and
qualified. Any number of such offices may be held by the same
person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity. Any vacancy occurring in
the office of the Chairman, Chief Executive Officer or President
shall be filed by Supermajority Vote of the Board of Directors.
The Chairman, Chief Executive Officer or President shall be
subject to removal without cause only by Supermajority Vote of
the Board of Directors at a special meeting of the Board of
Directors called for that purpose.
The Board of Directors may appoint, and may delegate
power to appoint, such other non-executive officers, agents and
employees as it may deem necessary or proper, who shall hold
their offices or positions for such terms, have such authority
and perform such duties as may from time to time be determined by
or pursuant to authorization of the Board of Directors.
Section 5.2 The Chairman of the Board. The Chairman
of the Board shall be a director and shall preside at all
meetings of the Board of Directors and, in the absence or
inability to act of the Chief Executive Officer, meetings of
stockholders and shall, subject to the Board's direction and
control, be the Board's representative and medium of
communication, and shall perform such other duties as may from
time-to-time be assigned to the Chairman of the Board by
Supermajority Vote of the Board of Directors. The Chairman of
the Board shall direct the long-term strategic planning process
of the Corporation and shall also lend his or her expertise to
the President, as may be requested from time-to-time by the
President. The Chairman shall be a member of the Executive
Committee.
Section 5.3 Vice-Chairman. The Vice-Chairman of the
Board shall be a director and shall preside at meetings of the
Board of Directors in the absence or inability to act of the
Chairman of the Board or meetings of stockholders in the absence
or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice-Chairman shall perform such
other duties as may from time-to-time be assigned to him or her
by Supermajority Vote of the Board of Directors. The Vice-
Chairman shall be a member of the Executive Committee and the
Nominating Committee.
Section 5.4 Chief Executive Officer. The Chief
Executive Officer shall be a director and shall preside at all
meetings of the stockholders, and, in the absence or inability to
act of the Chairman of the Board and the Vice-Chairman, meetings
of the Board of Directors, and shall submit a report of the
operations of the Corporation for the fiscal year to the
stockholders at their annual meeting and from time-to-time shall
report to the Board of Directors all matters within his or her
knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be
the chairman of the Executive Committee and an ex officio member
of all standing committees. The President and the Internal
Auditing Department will report directly to the Chief Executive
Officer.
Section 5.5 The President. The President shall be a
director and shall be the Chief Operating Officer of the
Corporation. The President shall have general and active
management and direction of the affairs of the Corporation, shall
have supervision of all departments and of all officers of the
Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried
into effect, and shall have the general powers and duties of
supervision and management usually vested in the office of
President of a corporation. All corporate officers and functions
except those reporting to the Chief Executive Officer shall
report directly to the President.
Section 5.6 The Vice-Presidents. The Vice-Presidents
shall perform such duties as the Board of Directors shall, from
time to time, require. In the absence or incapacity of the
President, the Vice President designated by the President or
Board of Directors or Executive Committee shall exercise the
powers and duties of the President.
Section 5.7 The Secretary. The Secretary shall attend
all meetings of the Board of Directors, of the Executive
Committee and any other committee of the Board of Directors and
of the stockholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing
committees when required.
The Secretary shall keep in safe custody the seal of
the corporation and, whenever authorized by the Board of
Directors or the Executive Committee, affix the seal to any
instrument requiring the same.
The Secretary shall see that proper notice is given of
all the meetings of the stockholders of the Corporation and of
the Board of Directors and shall perform such other duties as may
be prescribed from time to time by the Board of Directors or by
the President.
Assistant Secretaries. At the request of the
Secretary, or his or her absence or inability to act, the
Assistant Secretary or, if there by more than one, the Assistant
Secretary designated by the Secretary, shall perform the duties
of the Secretary and when so acting shall have all the powers of
and be subject to all the restrictions of the Secretary. The
Assistant Secretaries shall perform such other duties as may from
time to time be assigned to them by the President, the Secretary,
or the Board of Directors.
Section 5.8 The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and
accurate accounts of all collections, receipts and disbursements
in books belonging to the corporation, shall deposit all moneys
and other valuables in the name and to the credit of the
Corporation, in such depositories as may be directed by the Board
of Directors, shall disburse the funds of the Corporation as may
be ordered by the Board of Directors or by the President, taking
proper vouchers therefor, and shall render to the President and
directors at all regular meetings of the Board, or whenever they
may require it, and to the annual meeting of the stockholders, an
account of all his or her transactions as Treasurer and of the
financial condition of the Corporation.
The Treasurer shall also perform such other duties as
the Board of Directors may from time to time require.
If required by the Board of Directors the Treasurer
shall give the Corporation a bond in a form and in a sum with
surety satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and the
restoration to the Corporation in the case of his or her death,
resignation or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his or her
possession belonging to the Corporation.
Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to
time be assigned to them by the President, the Treasurer, or the
Board of Directors.
Section 5.9 The Comptroller. The Comptroller shall
have control over all accounts and records of the Corporation
pertaining to moneys, properties, materials and supplies. He or
she shall have executive direction over the bookkeeping and
accounting departments and shall have general supervision over
the records in all other departments pertaining to moneys,
properties, materials and supplies. He or she shall have such
other powers and duties as are incident to the office of
Comptroller of a corporation and shall be subject at all times to
the direction and control of the Board of Directors, the
Chairman, the President and a Vice President. In case of the
absence, disability, death, resignation or removal from office of
the Comptroller, the powers and duties of the Comptroller shall
be delegated by the Board of Directors, the Chairman, the
President or a Vice President.
Section 5.10 Compensation and Bond. The compensation
of the officers of the Corporation shall be fixed by the Board of
Directors, but this power may be delegated to any officer in
respect of other officers under his or her control. The
Corporation may secure the fidelity of any or all of its
officers, agents or employees by bond or otherwise.
ARTICLE VI
Indemnification
Section 6.1 Indemnification of Directors, Officers,
Employees and Agents. (A) Any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than any action or suit by
or in the right of the Corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise (specifically including employee benefit plans), shall
be indemnified by the Corporation, if, as and to the extent
authorized by applicable law, against expenses (specifically
including attorney's fees), judgments, fines (specifically
including any excise taxes assessed on a person with respect to
an employee benefit plan) and amounts paid in settlement actually
and reasonably incurred by him or her in connection with the
defense or settlement of such action, suit or proceeding, if he
or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner he or she reasonably believed to be in and not opposed to
the best interests of the Corporation and, with respect to any
criminal action or proceeding, he or she had no reasonable cause
to believe his or her conduct was unlawful.
(B) The Corporation shall, to the extent not
prohibited by applicable law, indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action or suit by
or in the right of the Corporation to procure a judgement in its
favor by reason of the fact that he or she is or was a director,
officer, employee, or agent of the Corporation or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or
foreign, non-profit or for-profit, partnership, joint venture,
trust or other enterprise (specifically including employee
benefit plans), against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with
the defense or settlement of such action or suit if he or she
acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the Corporation; provided
that, no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(C) To the extent that a director, officer, employee,
or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred
to in the paragraphs (A) or (B) of this Section, or in defense of
any claim, issue, or matter therein, he or she shall be
indemnified against expenses, specifically including attorneys'
fees, actually and reasonably incurred by him or her in
connection therewith.
(D) Any indemnification under Paragraphs (A) and (B) of
this Section, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee,
officer, employee, or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in such Paragraphs (A) and (B). Such determination shall
be made as follows: (1) the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to
such action, suit, or proceeding; (2) if the quorum described in
(D)(1) of this Section is not obtainable or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or (3) by the stockholders.
Section 6.2 Advances for Litigation Expenses.
Expenses (including attorneys' fees) incurred by a director,
officer, employee, or agent of the Corporation in defending any
civil, criminal, administrative or investigative action, suit or
proceeding, shall be paid by the Corporation as they are incurred
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director, officer, employee, or agent: (1) to repay such amount
if it shall ultimately be determined that he is not entitled to
be indemnified by the Corporation as authorized in this
Article VI; and (2) to cooperate reasonably with the Corporation
concerning the action, suit or proceeding.
Section 6.3 Indemnification Nonexclusive. The
indemnification provided by this Article shall not be exclusive
of and shall be in addition to any other rights granted to those
seeking indemnification under the Certificate of Incorporation,
these By-Laws, any agreement, any vote of stockholders or
disinterested directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holding such office and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 6.4 Indemnity Insurance. The Corporation may
purchase and maintain insurance or furnish similar protection,
including but not limited to trust funds, letters of credit, or
self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
trustee, officer, employee or agent of another corporation,
domestic or foreign, nonprofit or for profit, partnership, joint
venture, trust, or other enterprise, against any liability
asserted against him or her and incurred by him or her in any
such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify
him or her against such liability under this Article. Insurance
may be purchased from or maintained with a person in which the
Corporation has a financial interest.
Section 6.5 Definitions. For purposes of this
Article: (1) a person who acted in good faith and in a manner he
or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
conclusively be deemed to have acted in a manner "not opposed to
the best interests of the Corporation"; (2) a person shall be
deemed to have acted in "good faith" and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or
books of account of the Corporation or another enterprise, or on
information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the
Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise;
(3) the term "another enterprise" as used in this Article VI
shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent; and (4)
references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger, which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees, and agents.
ARTICLE VII
Common Stock
Section 7.1 Certificates. Certificates for stock of
the Corporation shall be in such form as shall be approved by the
Board of Directors and shall be signed in the name of the
Corporation by the Chairman or the President or a Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary. Such certificates may be sealed with
the seal of the Corporation or a facsimile thereof. Any of or
all the signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 7.2 Transfers of Stock. Transfers of stock
shall be made only upon the books of the Corporation by the
holder, in person or by duly authorized attorney, and on the
surrender of the certificate or certificates for such stock
properly endorsed. The Board of Directors shall have the power
to make all such rules and regulations, not inconsistent with the
Certificate of Incorporation and these By-Laws and the law, as
the Board of Directors may deem appropriate concerning the issue,
transfer and registration of certificates for stock of the
Corporation. The Board of Directors or the Finance Committee
may appoint one (1) or more transfer agents or registrars of
transfers, or both, and may require all stock certificates to
bear the signature of either or both.
Section 7.3 Lost, Stolen or Destroyed Certificates.
The Corporation may issue a new stock certificate in the place of
any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate or his or her
legal representative to give the Corporation a bond sufficient to
indemnify it 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 any such new certificate. The
Board of Directors may require such owner to satisfy other
reasonable requirements.
Section 7.4 Stockholder Record Date. In order that
the Corporation may determine 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 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 of Directors may fix, in advance, a record date, which
shall not be more than 60 nor less than 10 days before the date
of such meeting, nor more than sixty days prior to any other
action. Only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to notice of, and
to vote at, such meeting and any adjournment thereof, or to give
such consent, or to receive payment of such dividend or other
distribution, or to exercise such rights in respect of any such
change, conversion or exchange of stock, or to participate in
such action, as the case may be, notwithstanding any transfer of
any stock on the books of the Corporation after any record date
so fixed.
If no record date is fixed by the Board of Directors,
(l) 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 date on which
notice is given, or, if notice is waived by all stockholders
entitled to vote at the meeting, at the close of business on the
day next preceding the day on which the meeting is held and (2)
the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
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
of Directors may fix a new record date for the adjourned meeting.
Section 7.5 Beneficial Owners. The Corporation shall
be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
ARTICLE VIII
Seal
Section 8.1 Seal. The seal of the Corporation shall
be circular in form and shall bear, in addition to any other
emblem or device approved by the Board of Directors, the name of
the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
ARTICLE IX
Waiver of Notice
Section 9.1 Waiver of Notice. Whenever notice is
required to be given by statute, or under any provision of the
Certificate of Incorporation or these 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. In the case of a stockholder, such waiver of notice may
be signed by such stockholder's attorney or proxy duly appointed
in writing. 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 stockholders, directors or members of a
committee of directors need be specified in any written waiver of
notice.
ARTICLE X
Fiscal Year
Section 10.1 Fiscal Year. The Fiscal Year of the
corporation shall begin on the first day of January and terminate
on the thirty-first day of December each year.
ARTICLE XI
Contracts, Checks, Notices, Etc.
Section 11.1 Contracts, Checks, Notices, Etc. The
Board of Directors or the Finance Committee may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute contracts, checks,
drafts, and orders for the payment of money in its behalf and, in
the discretion of the Board of Directors or the Finance
Committee, such officers may be so authorized to sign such
contracts or checks singly without the necessity of counter-
signature.
ARTICLE XII
Amendments
Section 12.1 Amendments. Except as set forth below,
these By-Laws may be amended or repealed by the Board of
Directors or by the affirmative vote of the holders of a majority
of the issued and outstanding common stock of the Corporation, or
by the unanimous written consent of the holders of the issued and
outstanding common stock of the Corporation.
Notwithstanding the foregoing paragraph, the
affirmative vote of the holders of at least 80% of the issued and
outstanding shares of common stock of the Corporation shall be
required to amend, alter or repeal, or adopt any provision
inconsistent with, the requirements of Section 2.2, Section 3.1,
Section 3.2, Section 3.3 or this paragraph of Section 12.1 of
these By-Laws, in addition to any requirements of law and any
provisions of the Certificate of Incorporation, any By-law, or
any resolution of the Board of Directors adopted pursuant to the
Certificate of Incorporation (and notwithstanding that a lesser
percentage may be specified by law, the Certificate of
Incorporation, these By-Laws, such resolution, or otherwise).
Notwithstanding any of the foregoing, the affirmative
vote of a majority of the holders of the issued and outstanding
common stock of the Corporation shall be required to amend, alter
or repeal, or adopt any provision inconsistent with (i) any
provision of these By-Laws requiring a Supermajority Vote of the
Board of Directors (including this provision of Section 12.1) or
(ii) the responsibilities of the Chief Executive Officer or
President as set forth in Section 5.4 or Section 5.5, and the
Board of Directors shall not recommend any such amendment to such
provisions to the stockholders unless the proposed amendment is
approved by the Board of Directors acting by Supermajority Vote.
ARTICLE XIII
Dividends
Section 13. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any
such reserve.