Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
IPALCO ENTERPRISES, INC.
ARTICLE 1
OFFICES
SECTION 1. The registered office of the Corporation required
by the Indiana Business Corporation Law (the "Corporation Law"), to be
maintained in the State of Indiana shall be in the City of Indianapolis, County
of Marion, State of Indiana. The Corporation may also have offices at such
other places both within and without the State of Indiana as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE 2
SHAREHOLDERS
SECTION 1. Time and Place of Meetings. All meetings of the shareholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Indiana, as shall be designated
by the Board of Directors. In the absence of a designation of a place for any
such meeting by the Board of Directors, each such meeting shall be held at the
principal office of the Corporation.
SECTION 2. Annual Meetings. An annual meeting of shareholders shall be
held for the purpose of electing directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
SECTION 3. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by law, may be called by
the Chief Executive Officer, by the President, by the Chairman of the Board and
shall be called by the Board of Directors if the Secretary receives written,
dated and signed demands for a special meeting, describing in reasonable detail
the purpose or purposes for which it is to be held, from the holders of shares
representing at least twenty-five percent (25%) of all votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting. If
the Secretary receives one (1) or more proper written demands for a special
meeting of shareholders entitled to make such demand.
SECTION 4. Notice of Meetings. Written notice of each meeting of the
shareholders stating the place, date and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten nor more than sixty days before the date
of the meeting, either personally or by mail, by the President, or by the
Secretary at the direction of the President or the person or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting. In
the event of a special meeting of shareholders required to be called as the
result of a demand therefor made by shareholders, such notice shall be given no
later than the sixtieth (60th) day after the Corporation's receipt of the
demand requiring the meeting to be called. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, addressed to
the shareholder at his address as it appears on the records of the Corporation,
with postage thereon prepaid.
Any shareholder entitled to receive notice may at any time waive notice of
any meeting by a writing executed and delivered to the Corporation for
inclusion in the minutes or filing with the Corporate records. Attendance by a
shareholder at any meeting (a) waives objection to lack of notice of defective
notice of the meeting, unless the shareholder or his or her proxy at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (b) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder or his or her proxy objects to
considering the matter when it is presented. If an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment, unless a new record date is or
must be established for the adjourned meeting.
SECTION 5. Quorum. The holders of record of a majority of the shares
issued and outstanding and entitled to vote on a matter, represented in person
or by proxy, shall constitute a quorum for action on the matter at all meetings
of the shareholders for the transaction of business, except as otherwise
provided by the Corporation Law or by the Articles of Incorporation. Action may
be taken at a shareholders' meeting only on matters with respect to which a
quorum exists; provided, however, that any meeting of shareholders, including
annual and special meetings and any adjournments thereof, may be adjourned to a
later date although less than a quorum is present. Once a share is represented
for any purpose at a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be act for that adjourned meeting.
SECTION 6. Voting. Except as otherwise provided in the Corporation Law
or in the Articles of Incorporation, at all meetings of the shareholders, each
shareholder shall be entitled to vote, in person or by proxy, each share owned
by such shareholder of record on the record date for the meeting and that is
still outstanding at the time of the meeting. Each outstanding share shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders, unless otherwise provided in the Corporation Law or in the
Articles of Incorporation. When a quorum is present as to a matter to be
considered at any meeting, action on such matter (other than the election of
Directors) is approved if the votes properly cast favoring the action exceed
the votes properly cast opposing the
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action, except as the Articles of Incorporation or the Corporation Law require a
greater number of affirmative votes. Directors shall be elected by a plurality
of the votes properly cast.
SECTION 7. Informal Action by Shareholders. Unless otherwise provided
by the Corporation Law or by the Articles of Incorporation, any action required
to be taken at a meeting of the shareholders, or any other action which may be
taken at a meeting of the shareholders, may be taken without a meeting and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders entitled to vote on the action, and
is delivered to the Corporation for inclusion in the minutes or filings with
the corporate records.
SECTION 8. Proxies. At all meetings of shareholders, a shareholder may
vote in person or vote by proxy which is executed by the shareholder or his
duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary
or other person authorized to tabulate votes at any time prior to the
commencement of the meeting. No proxy shall be valid after eleven months from
the date of its execution unless a larger period is expressly provided in the
proxy.
ARTICLE 3
DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of its Board of
Directors, which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or by the Articles of
Incorporation or by these By-laws directed or required to be exercised or done
by the shareholders.
SECTION 2. Number, Qualification and Tenure. The Board of Directors of
the Corporation shall consist of not less than three (3) members and not more
than twelve (12) members, as may be determined by the Board of Directors from
time to time. Within the limits above specified, the number of directors shall
be determined from time to time by resolution of the Board of Directors. The
directors shall be elected at the annual meeting of the shareholders, except as
provided in the Articles of Incorporation or Section 3 of this Article, and
each director elected shall hold office until his successor is elected and
qualified or until his earlier death, disqualification, resignation or removal
from office. Any decrease in the number of directors shall not have the effect
of shortening the term of any incumbent director.
SECTION 3. Vacancies and Newly Created Directorships. Vacancies and
newly created directorships resulting from any increase in the number of
directors may be filled by the appointment of a majority of the directors then
in office (even though less than a quorum), and each director so appointed
shall hold office until the next annual meeting of shareholders and until his
successor is elected and qualified or until the earlier death,
disqualification, resignation or removal from office of such director.
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SECTION 4. Independent Director.
(a) The Corporation shall have at all times one individual who is an
Independent Director (as defined below). If the Independent Director resigns,
dies or becomes incapacitated, or such position is otherwise vacant, no action
requiring the unanimous affirmative vote of the directors shall be taken until
a successor Independent Director is appointed and qualified and approves such
action.
(b) Notwithstanding any other provision of these By-laws and any provision
of law that otherwise so empowers the Corporation, the Corporation shall not,
without the prior unanimous consent of the Board of Directors, including the
Independent Director, do any of the following: (i) make a general assignment
for the benefit of creditors; (ii) file a voluntary petition in bankruptcy;
(iii) file a petition or answer seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation; (iv) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it in
any proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation, or the entry of any order appointing a trustee, liquidator or
receiver of it or of its assets or any substantial portion thereof; or (v)
seek, consent to or acquiesce in the appointment of a trustee, receiver or
liquidator of it or of all or any substantial part of its assets. With regard
to any action contemplated by the preceding sentence, or with regard to any
action taken or determination made at any time when the Corporation is
insolvent, each director will owe its primary fiduciary duty to the Corporation
(including the creditors of the Corporation).
(c) For purposes of these By-laws of the Corporation, "Independent
Director" shall mean, with respect to the Corporation, a director who is not,
and within the last five years was not (except solely by virtue of such
person's serving as, or affiliation with any other person serving as, an
independent director of The AES Corporation ("Parent") or any of its
affiliates), (i) a stockholder, member, partner, director, officer, employee,
affiliate, customer, supplier, creditor or independent contractor of, or any
person that has received any benefit in any form whatever from, or any person
that has provided any service in any form whatever to, or any major creditor
(or any affiliate of any major creditor) of the Parent or any of its
affiliates, or (ii) any person owning beneficially, directly or indirectly, any
outstanding shares of common stock, any limited liability corporation interests
or any partnership interests, as applicable, of a Parent or any of its
affiliates, or of any major creditor (or any affiliate of any major creditor)
of any of the foregoing, or a stockholder, member, partner, director, officer,
employee, affiliate, customer, supplier, creditor or independent contractor of,
or any person that has received any benefit in any form whatever from, or any
person that has provided any service in any form whatever to, such beneficial
owner or any of such beneficial owner's affiliates, or (iii) a member of the
immediate family of any person described above; provided that the indirect or
beneficial ownership of stock through a mutual fund or similar diversified
investment vehicle with respect to which the owner does not have discretion or
control over the investments held by such diversified investment vehicle shall
not preclude such owner from being an Independent Director. For purposes of
this definition, "major creditor" shall mean a natural person or business
entity to which the Parent or any of its
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affiliates has outstanding indebtedness for borrowed money or credit on open
account in a sum sufficiently large as would reasonably be expected to
influence the judgment of the proposed Independent Director adversely to the
interests of the Corporation when the interests of that person or entity are
adverse to those of the Corporation.
SECTION 5. Directors' Duties. The directors, including the Independent
Director, will act in good faith in accordance with the terms of the
organizational documents and applicable law, and make decisions with respect to
the business and operations of the Corporation independent of, and not dictated
by, the Parent, or any other affiliate thereof, and any director shall bear a
fiduciary duty to the Corporation (including its creditors).
SECTION 6. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Indiana.
SECTION 7. Meetings. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the shareholders without any notice being given. Other regular
meetings of the Board of Directors shall be held at such time and place as the
Board of Directors may designate from time to time. No notice of regular
meetings need be given, other than by announcement at the immediately preceding
regular meeting. Special meetings of the Board of Directors may be called by or
at the request of the Chairman of the Board or a majority of the Board of
Directors. Notice of any special meeting of the Board shall be given at least
two days prior thereto, either in writing, or telephonically if confirmed
promptly in writing, to each director at the address shown for such director on
the records of the Corporation.
SECTION 8. Waiver of Notice; Business and Purpose. Notice of any
meeting of the Board of Directors may be waived in writing at any time if such
waiver is signed by the person or persons entitled to such notice and filed
with the minutes or corporate records. A Director's attendance at or
participation in a meeting waives any required notice to the Director of the
meeting, unless the Director at the beginning of the meeting (or promptly upon
the Director's arrival) objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to action taken at
the meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board need be specified in the notice or
waiver of notice of such meeting, unless specifically required by the
Corporation Law.
SECTION 9. Quorum and Voting. At all meetings of the Board of Directors
a majority of the total number of directors then in office immediately before
the meeting begins shall constitute a quorum for the transaction of business.
The act of a majority of the directors present at any meeting at which there is
a quorum present when a vote is taken shall be the act of the Board of
Directors, unless the act of a greater number is required by the Corporation
Law or by the Articles of Incorporation or By-Laws.
SECTION 10. Organization. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If the Chairman of
the Board is not elected or if elected, is not present, the Vice Chairman, if
any, or, if no such Vice
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Chairman is present, a director chosen by a majority of the directors present,
shall act as chairman at such meeting of the Board of Directors.
SECTION 11. Committees. The Board of Directors, by resolution adopted by
a majority of the whole Board, may designate two or more directors to
constitute an Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may create one or more other
committees and appoint two or more directors to serve on such committee or
committees. Each director appointed to serve on any such committee shall serve
at the pleasure of the Board, unless the resolution designating the respective
committee is sooner amended or rescinded by the Board of Directors, until the
next annual meeting of the Board or until his respective successor is
designated. The Board of Directors, by resolution adopted by a majority of the
whole Board, may also designate additional directors as alternate members of
any committee to serve as members of such committee in the place and stead of
any regular member or members thereof who may be unable to attend a meeting or
otherwise unavailable to act as a member of such committee. In the absence or
disqualification of a member and all alternate members designated to serve in
the place and stead of such member, the member or members thereof present at
any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another director to act at
the meeting in the place and stead of such absent or disqualified member.
The Executive Committee may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation between the meetings of the Board of Directors, and any other
committee may exercise the power and authority of the Board of Directors to the
extent specified by the resolution designating such committee, or the Articles
of Incorporation or these By-laws; provided, however, that no committee may
take any action that is expressly required by the Corporation Law or the
Articles of Incorporation or these By-laws to be taken by the Board of
Directors and not by a committee thereof. Each committee shall keep a record of
its acts and proceedings, which shall form a part of the records of the
Corporation in the custody of the Secretary, and all actions of each committee
shall be reported to the Board of Directors at the next meeting of the Board.
Except to the extent inconsistent with the resolutions creating a
committee, Sections 6, 7, 8, 9, 12, 13 and 15 of Article III of these By-Laws,
which govern meetings, action without meetings, notice and waiver of notice,
quorum and voting requirements and telephone participation in meetings of the
Board of Directors, apply to each committee and its members as well.
SECTION 12. Action without Meeting. Unless otherwise specifically
prohibited by the Articles of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or such committee, as the case may be, execute a consent
thereto in writing setting forth the action so taken, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
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SECTION 13. Attendance by Telephone. Members of the Board of Directors
or any committee thereof may participate in and act at any meeting of the Board
of Directors or such committee, as the case may be, through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can simultaneously hear each other.
Participation in such meeting shall constitute attendance and presence in
person at the meeting of the person or persons so participating.
SECTION 14. Compensation. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members thereof, the
directors may be paid their reasonable expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at
meetings or a stated salary as directors, payable in cash or securities. These
payments shall not preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
SECTION 15. Presumption of Assent. A director who is present at a
meeting of the Board of Directors or any committee thereof when corporate
action is taken shall be deemed to have assented to the action taken unless:
(1) he objects at the beginning of the meeting (or promptly upon his arrival)
to holding such meeting or transacting business at such meeting; (2) his
dissent or abstention from the action taken is entered in the minutes of such
meeting; or (3) be delivers written notice of his dissent or abstention to the
presiding officer of the meeting before the adjournment thereof or to the
Secretary immediately after the adjournment of such meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
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ARTICLE 4
OFFICERS
SECTION 1. Enumeration. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a President and a Secretary. The
Board of Directors may also elect a Chairman of the Board, a Vice Chairman, one
or more Vice Presidents, a Treasurer, one or more Assistant Secretaries and
Assistant Treasurers and such other officers and agents as it may deem
appropriate. Any number of offices may be held by the same person.
SECTION 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified or until their earlier death,
resignation or removal from office. Any officer or agent of the Corporation may
be removed, with or without cause, by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights. Any vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 3. Chief Executive Officer. The Chief Executive Officer of the
Corporation, if elected, shall have general supervision, direction and control
of the business and affairs of the Corporation, subject to the control of the
Board of Directors, and shall have such other functions, authority and duties
as customarily appertain to the office of the chief executive officer of a
business corporation or as may be prescribed by the Board of Directors.
SECTION 4. President. During any period when there shall be an office
of Chief Executive Officer, the President shall be the chief operating officer
of the Corporation and shall have such functions, authority and duties as may
be prescribed by the Board of Directors or the Chief Executive Officer. During
any period when there shall not be an office of Chief Executive Officer, the
President shall be the chief executive officer of the Corporation, and, as
such, shall have the functions, authority and duties provided for the Chief
Executive Officer.
SECTION 5. Vice President. The Vice President or, if there shall be more
than one, each Vice President, in the absence of the President or in the event
of the President's inability or refusal to act (and if there be no Chief
Executive Officer), shall have the authority to perform the duties of the
President, subject to such limitations thereon as may be imposed by the Board
of Directors, and such other duties as may from time to time be prescribed by
the Board of Directors, the Chief Executive Officer or the President.
SECTION 6. Secretary. The Secretary shall: (a) keep a record of all
proceedings of the shareholders, the Board of Directors and any committees
thereof in one of more
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books provided for that purpose; (b) give, or cause to
be given, all notices that are required by law or these By-laws to be given by
the Secretary; (c) be custodian of the corporate records and, if the
Corporation has a corporate seal, of the seal of the Corporation; (d) have
authority to affix the seal of the Corporation to all instruments the execution
of which requires such seal and to attest such affixing of the seal; (e) keep a
register of the post office address of each shareholder which shall be
furnished to the Secretary by such shareholder; (f) sign, with the Chief
Executive Officer, if any, or President or any Vice President, or any other
officer thereunto authorized by the Board of Directors, any certificates for
shares of the Corporation, or any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed by the
signature of more than one officer; (g) have general charge of the share
transfer books of the Corporation; (h) have authority to certify as true and
correct copies of the By-laws, or resolutions of the shareholders, the Board of
Directors and committees thereof, and of other documents of the Corporation;
and (i) in general, perform the duties incident to the office of secretary and
such other duties as from time to time may be prescribed by the Board of
Directors, the Chief Executive Officer or the President. The Board of Directors
may give general authority to any other officer to affix the seal of the
Corporation and to attest such affixing of the seal.
SECTION 7. Assistant Secretary. The Assistant Secretary, or if there
shall be more than one, each Assistant Secretary in the absence of the
Secretary or in the event of the Secretary's inability or refusal to act, shall
have the authority to perform the duties of the Secretary, subject to such
limitations thereon as may be imposed by the Board of Directors, and such other
duties as may from time to time be prescribed by the Board of Directors, the
Chief Executive Officer, the President or the Secretary.
SECTION 8. Treasurer. The Treasurer shall be the principal accounting and
financial officer of the Corporation. The Treasurer shall: (a) have charge of
and be responsible for the maintenance of adequate books of account for the
Corporation; (b) have charge and custody of all funds and securities of the
Corporation, and be responsible therefor and for the receipt and disbursement
thereof; and (c) perform the duties incident to the office of treasurer and
such other duties as may from time to time be prescribed by the Board of
Directors, the Chief Executive Officer or the President. The Treasurer may sign
with the Chief Executive Officer, if any, or the President, or any Vice
President, or any other officer thereunto authorized by the Board of Directors,
certificates for shares of the Corporation. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
may determine.
SECTION 9. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, each Assistant Treasurer, in the absence of the
Treasurer or in the event of the Treasurer's inability or refusal to act, shall
have the authority to perform the duties of the Treasurer, subject to such
limitations thereon as may be imposed by the Board of Directors, and such other
duties as may from time to time be prescribed by the Board of Directors, the
Chief Executive Officer, the President or the Treasurer.
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SECTION 10. Other Officers and Agents. Any officer or agent who is
elected or appointed from time to time by the Board of Directors and whose
duties are not specified in these By-laws shall perform such duties and have
such powers as may from time to time be prescribed by the Board of Directors,
the Chief Executive Officer or the President.
ARTICLE 5
CERTIFICATES FOR SHARES
SECTION 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's shares shall be uncertificated shares. Each certificate for
shares shall be consecutively numbered or otherwise identified. Certificates
representing shares in the Corporation shall be signed by or in the name of the
Corporation by the Chief Executive Officer or the President or a Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation. Where a certificate is countersigned by a
transfer agent, other than the Corporation or an employee of the Corporation,
or by a registrar, the signatures of one or more officers of the Corporation
may be facsimiles. 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, the certificate may be issued by the Corporation with
the same effect as if such officer, transfer agent or registrar were such
officer, transfer agent or registrar at the date of its issue.
SECTION 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate or
uncertificated shares in place of any certificate therefor issued by the
Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its share book.
SECTION 3. Replacement. In case of the loss, destruction, mutilation or
theft of a certificate representing shares of the Corporation, a new
certificate may be issued upon the surrender of the mutilated certificate or,
in the case of loss, destruction or theft of a certificate, upon satisfactory
proof of such loss, destruction or theft and upon such terms as the Board of
Directors may prescribe. The Board of Directors may in its discretion require
the owner of the lost, destroyed or stolen certificate, or his legal
representative, to give the Corporation a bond, in such sum and in such form
and with such surety or sureties as it may direct, to indemnify the
Corporation, its transfer agents and registrars, if any, against any claim that
may be made against them or any of them with respect to the certificate alleged
to have been lost, destroyed or stolen.
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ARTICLE 6
SEPARATENESS
SECTION 1. Funds, Assets and Accounts. The funds and other assets of
the Corporation shall not be commingled with those of any other entity, and the
Corporation shall maintain its accounts separate from any other person or
entity.
SECTION 2. Liability for Debts and Name. The Corporation shall not hold
itself out as being liable for the debts of any other entity, and shall conduct
its own business in its own name.
SECTION 3. Action Through Agents and Identity. The Corporation shall
act solely in its own name and through its duly authorized directors, officers
or agents in the conduct of its business, and shall conduct its business so as
not to mislead others as to the identity of the entity or assets with which
they are concerned.
SECTION 4. Separate Records. The Corporation shall maintain separate
records, books of account and financial statements, and shall not commingle its
records and books of account with the records and books of account of any other
entity.
SECTION 5. Formalities. The Corporation shall observe in all material
respects all formalities required by its organizational documents and
applicable law.
SECTION 6. Capitalization. The Corporation shall at all times ensure
that its capitalization is adequate in light of its business and purpose.
SECTION 7. Debts of Affiliates. Subject to the last sentence of this
Section 7, (i) neither the Parent nor any affiliate of the Parent (other than
the Corporation) shall guaranty, become liable on or hold itself out as being
liable for the debts of the Corporation; (ii) the Corporation shall not
guarantee or become obligated for the debts of the Parent or any affiliate
thereof (other than the Corporation), or otherwise hold out its credit as being
available to satisfy the obligations of the Parent or any affiliate thereof
(other than the Corporation); (iii) the Corporation shall not pledge its assets
for the benefit of Parent or any of its affiliates; (iv) the Corporation shall
not make loans or advances to Parent or any of its affiliates, and shall not
acquire obligations or securities of the Parent or any affiliate thereof (other
than the Corporation), other than the settlement of purchase contracts with
respect to any Premium Income Equity Securities or similar securities issued by
the Corporation. Notwithstanding the foregoing, the Corporation may take any
action otherwise prohibited under this Section 7 if such action is taken with
respect to its own subsidiaries, and its own subsidiaries may take any action
otherwise prohibited under this Section 7 if such action is taken with respect
to the Corporation.
SECTION 8. Payment of Liabilities. The Corporation shall pay its own
liabilities out of its own funds.
SECTION 9. Arm's Length Relationship with Affiliates. The Corporation
shall maintain an arm's-length relationship with its affiliates.
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SECTION 10. Overhead and Office Space. The Corporation shall allocate
fairly and reasonably any overhead for office space shared with the Parent or
any affiliate thereof.
SECTION 11. Separate Business Forms. The Corporation shall use its own
separate stationery, invoices, checks and other business forms.
SECTION 12. Correction of Misunderstandings. The Corporation shall
correct any known misunderstanding regarding its separate identity.
ARTICLE 7
GENERAL PROVISIONS
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
SECTION 2. Corporation Seal. The corporate seal, if any, of the
Corporation shall be in such form as may be approved from time to tune by the
Board of Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
SECTION 3. Notices and Mailing. Except as otherwise provided in the
Corporation Law, the Articles of Incorporation or these By-laws, all notices
required to be given by any provision of these By-laws shall be deemed to have
been given (i) when received, if given in person, (ii) on the date of
acknowledgment of receipt, if sent by telex, facsimile or other wire
transmission, (iii) one day after delivery, properly addressed, to a reputable
courier for same day or overnight delivery, or (iv) five days after being
deposited, properly addressed, in the U.S. mail, certified or registered mail,
postage prepaid.
SECTION 4. Waiver of Notice. Except as otherwise set forth in the
Corporation Law, the Articles of Incorporation or these By-Laws, whenever any
notice is required to be given under the Corporation Law or the provisions of
the Articles of Incorporation or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
SECTION 5. Interpretation. In these By-laws, unless a clear contrary
intention appears, the singular number includes the plural number and vice
versa, and reference to either gender includes the other gender.
ARTICLE 8
AMENDMENTS
Unless the power to make, alter, amend or repeal these By-laws is reserved
to the shareholders by the Articles of Incorporation, these By-laws, including
any By-law adopted by the shareholders, may be made, altered, amended or
repealed by the
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shareholders or the Board of Directors, provided, that (i) the unanimous
consent of the Board of Directors, including the Independent Director, shall be
required to alter, amend or repeal (a) Section 4 and Section 5 of Article III
hereof; (b) Article VI hereof; and (c) this Article VIII; and (ii) subject to
paragraph (i) above, the fact that the power to make, alter, amend or repeal
these By-laws has been conferred upon the Board of Directors shall not divest
the shareholders of the same powers.
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