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[CHASE LOGO]
Exhibit 4.2
BY-LAWS
THE CHASE MANHATTAN CORPORATION
(name changed from Chemical Banking Corporation on March 31, 1996)
AS AMENDED THROUGH
March 18, 1997
Office of the Secretary
270 Park Avenue, 35th floor
New York, New York 10017
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CONTENTS
SUBJECT
ARTICLE
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I MEETINGS OF STOCKHOLDERS
Section 1.01 Annual Meeting
Section 1.02 Special Meetings
Section 1.03 Notice of Meetings
Section 1.04 Quorum
Section 1.05 Organization
Section 1.06 Voting
Section 1.07 List of Stockholders
Section 1.08 Inspectors of Election
Section 1.09 Notice of Stockholder Business and
Director Nominations.
II BOARD OF DIRECTORS
Section 2.01 Number
Section 2.02 Vacancies
Section 2.03 Annual Meeting
Section 2.04 Regular Meetings
Section 2.05 Special Meetings
Section 2.06 Quorum
Section 2.07 Rules and Regulations
Section 2.08 Compensation
III COMMITTEES
Section 3.01 Executive Committee
Section 3.02 Audit Committee
Section 3.03 Other Committees
IV OFFICERS AND AGENTS
Section 4.01 Officers
Section 4.02 Clerks and Agents
Section 4.03 Term of Office
Section 4.04 Chairman of the Board
Section 4.05 President
Section 4.06 Vice Chairman of the Board
Section 4.07 Chief Financial Officer
Section 4.08 Controller
Section 4.09 Secretary
Section 4.10 Assistant Corporate Secretary
Section 4.11 General Auditor
Section 4.12 Powers and Duties of Other Officers
V PROXIES RE STOCK OR OTHER
SECURITIES OF OTHER CORPORATIONS
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VI SHARES AND THEIR TRANSFER
Section 6.01 Certificates for Stock
Section 6.02 Transfers of Stock
Section 6.03 Regulations
Section 6.04 Lost, Stolen, Destroyed and
Mutilated Certificates
Section 6.05 Fixing Date for Determination of
Stockholders of Record
VII CORPORATE SEAL
VIII FISCAL YEAR
IX INDEMNIFICATION
Section 9.01 Right to Indemnification
Section 9.02 Contracts and Funding
Section 9.03 Employee Benefit Plans
Section 9.04 Indemnification Not Exclusive Right
Section 9.05 Advancement of Expenses; Procedures
X BY-LAWS
Section 10.01 Inspection
Section 10.02 Amendments
Section 10.03 Construction
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BY-LAWS
OF
THE CHASE MANHATTAN CORPORATION
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders of
The Chase Manhattan Corporation (the "Corporation") shall be held on the third
Tuesday in May in each year (or, if that day shall be a legal holiday then on
the next preceding business day) at such time and place within or without the
State of Delaware, as may be specified in the notice thereof, as shall be fixed
by the Board of Directors (the "Board"), for the purpose of electing directors
and for the transaction of such other business as may properly be brought before
such meeting. If any annual meeting shall not be held on the day designated or
the directors shall not have been elected thereat or at any adjournment thereof,
thereafter the Board shall cause a special meeting of the stockholders to be
held as soon as practicable for the election of directors. At such special
meeting the stockholders may elect directors and transact other business with
the same force and effect as at an annual meeting of the stockholders duly
called and held.
SECTION 1.02. Special Meetings. A special meeting of the stockholders
may be called at any time by the Board, the Chairman of the Board (herein called
the Chairman), the President or a Vice Chairman of the Board or otherwise as
provided by the General Corporation Law of the State of Delaware (herein called
Delaware General Corporation Law). Such meetings shall be held at such places,
within or without the State of Delaware, as may from time to time be designated
by the Board or in the respective notices or waivers of notice thereof.
SECTION 1.03. Notice of Meetings. Except as may otherwise expressly be
required by law, notice of the place, date and hour of holding each annual and
special meeting of the stockholders and the purpose or purposes thereof shall be
delivered personally or mailed in a postage prepaid envelope, not less than ten
(10) nor more than sixty (60) days before the date of such meeting, to each
person who appears on the stock books and records of the Corporation as a
stockholder entitled to vote at such meeting, and, if mailed, it shall be
directed to such stockholder at his address as it appears on such records unless
he shall have filed with the Secretary of the Corporation a written request that
notice intended for him be mailed to some other address, in which case it shall
be mailed to the address designated in such request. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting has
not been lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy. Unless the
Board shall fix a new record date for an adjourned meeting, notice of such
adjourned meeting need not be given if the time and place to which the meeting
shall be adjourned were announced at the meeting at which the adjournment was
taken, provided that the adjournment is not for more than thirty (30) days.
SECTION 1.04. Quorum. At each meeting of the stockholders, stockholders
holding of record shares of common stock constituting a majority of the voting
power of stock of the Corporation having general voting power (shares having
such general voting power being hereinafter sometimes referred to as a "voting
interest of the stockholders") shall be present in
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person or by proxy to constitute a quorum for the transaction of business. In
the absence of a quorum at any such meeting or any adjournment or adjournments
thereof, a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote thereat, or in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as secretary of,
such meeting may adjourn such meeting from time to time. At any such adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called. The absence
from any meeting of stockholders holding the number of shares of stock of the
Corporation required by the laws of the State of Delaware or by the Certificate
of Incorporation of the Corporation or by these By-laws for action upon any
given matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if there shall be present
thereat in person or by proxy stockholders holding the number of shares of
stock of the Corporation required in respect of such other matter or matters.
SECTION 1.05. Organization. At a meeting of the stockholders, the
Chairman, or, if he shall be absent therefrom, the President, or a Vice Chairman
of the Board, or, if they also shall be absent therefrom, another officer of
the Corporation chosen as chairman of such meeting by a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat, or, if all the officers of the Corporation shall be absent therefrom,
a stockholder holding of record shares of stock of the Corporation so chosen,
shall act as chairman of the meeting and preside thereat; and the Secretary,
or, if he shall be absent from such meeting or shall be required pursuant to
the provisions of this Section to act as chairman of such meeting, the person
(who shall be an Assistant Corporate Secretary, if an Assistant Corporate
Secretary shall be present thereat) whom the chairman of such meeting shall
appoint shall act as secretary of such meeting and keep the minutes thereof.
SECTION 1.06. Voting. Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of stock of the
Corporation held by him and registered in his name on the stock books and
records of the Corporation:
(a) on the date fixed pursuant to the provisions of Article VI of these
By-laws as the record date for the determination of stockholders who
shall be entitled to notice of and to vote at such meeting, or
(b) if no such record date shall have been so fixed, then at the close
of business on the day next preceding the day on which notice of the
meeting shall be given.
Persons holding in a fiduciary capacity stock of the Corporation shall be
entitled to vote such stock so held, and persons whose stock is pledged shall
be entitled to vote such stock, unless in the transfer by the pledgor on the
books of the Corporation he shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his proxy, may represent such stock
and vote thereon. If shares of stock of the Corporation shall stand of record
in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons shall have the same fiduciary relationship
respecting the same shares of stock of the Corporation, unless the Secretary
shall have been given written notice to the contrary and have been furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect:
(a) if only one shall vote, his act shall bind all;
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(b) if more than one shall vote, the act of the majority so voting
shall bind all; and
(c) if more than one shall vote, but the vote shall be evenly split on
any particular matter, then, except as otherwise required by the
Delaware General Corporation Law, each faction may vote the shares
in question proportionally.
If the instrument so filed shall show that any such tenancy is held in unequal
interests, the majority or even-split for the purpose of the next foregoing
sentence shall be a majority or even-split in interest. Any vote on stock of the
Corporation may be given at any meeting of the stockholders by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in writing
subscribed by such stockholder or by his attorney thereunto authorized and
delivered to the Secretary of the Corporation or to the secretary of the
meeting, or by the 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 to receive such transmission, provided that any such
telegram, cablegram, or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
stockholder. Any copy, facsimile telecommunication or other reliable
reproduction of such writing or transmission may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that any such
reproduction is a complete reproduction of the entire original writing or
transmission. No proxy shall be voted or acted upon after three (3) years from
its date, unless said proxy shall provide for a longer period. At all meetings
of the stockholders all matters, except those otherwise specified in these
By-laws, and except also those the manner of deciding upon which is otherwise
expressly regulated by law or by the Certificate of Incorporation of the
Corporation, shall be decided by the vote of a majority in voting interest of
the stockholders present in person or by proxy and entitled to vote thereat, a
quorum being present. Except in the case of votes for the election of directors,
unless demanded by a stockholder of the Corporation present in person or by
proxy at any meeting of the stockholders and entitled to vote thereat or so
directed by the chairman of the meeting, the vote thereat need not be by ballot.
Upon a demand of any such stockholder for a vote by ballot on any question or at
the direction of such chairman that a vote by ballot be taken on any question,
such vote shall be taken. On a vote by ballot each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
SECTION 1.07. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corportion who shall have charge of its stock
books and records, either directly or through another officer of the Corporation
designated by him or through a transfer agent appointed by the Board, to prepare
and make, at least ten (10) days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
said meeting, either at a place within the city where said meeting is to be
held, which place shall be specified in the notice of said meeting, or, if not
so specified, at the place where said meeting is to be held. The list shall also
be produced and kept at the time and place of said meeting during the whole time
thereof, and may be inspected by any stockholder who shall be present thereat.
Upon the willful neglect or refusal of the directors to produce such list at any
meeting for the election of directors, they shall be ineligible for election to
any office at such meeting. The stock books and records shall be the only
evidence as to who are the stockholders entitled to examine the stock
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books and records of the Corporation, or such list, or to vote in person or by
proxy at any meeting of stockholders.
SECTION 1.08. Inspectors of Election. At each meeting of the
stockholders, the chairman of such meeting may appoint two or more Inspectors of
Election to act thereat. Each Inspector of election so appointed shall first
subscribe an oath or affirmation faithfully to execute the duties of an
Inspector of election at such meeting with strict impartiality and according to
the best of his ability. Such Inspectors of Election, if any, shall take charge
of the ballots at such meeting and after the balloting thereat on any question
shall count the ballots cast thereon and shall make a report in writing to the
secretary of such meeting of the results thereof. An Inspector of Election need
not be a stockholder of the Corporation, and any officer of the Corporation may
be an Inspector of Election on any question other than a vote for or against his
election to any position with the Corporation or on any other question in which
he may be directly interested.
SECTION 1.09. Notice of Stockholder Business and Director Nominations.
(a) Business and Director Nominations to be Considered at Annual Meeting of
Stockholders.
(1) Nominations of persons for election to the Board and the proposal of
business to be considered by the stockholders may be made at an annual
meeting of stockholders (i) pursuant to the Corporation's notice of
meeting, (ii) by or at the direction of the Board, or (iii) by any
stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this By-law who is entitled to
vote at the meeting and complies with the notice procedures set forth in
this By-law.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a)(1) of this By-law Section 1.09. (i) the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation and
(ii) such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal offices of the Corporation
not later than the close of business on the 90th day nor earlier than
the 120th day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of
the annual meeting is more than thirty (30) days before or more than
sixty (60) days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the 120th day prior
to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence on a new
time period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (ii) as to any other business that
the stockholder proposes to bring before the meeting, a brief
description of the business
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desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (iii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (A) the name and address
of such stockholder, as they appear on the Corporation's books, and
of such beneficial owner, (B) the class and number of shares of the
Corporation which are owned beneficially and of record by such
stockholder and any such beneficial owner, and (C) whether the
proponent intends or is part of a group which intends to solicit
proxies from other stockholders in support of such proposal or
nomination.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2)
of this By-law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of
the increased Board of Directors at least ninety (90) days prior to
the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-law shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal offices of the Corporation not later than
the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
(b) Business and Director Nominations to be Considered at Special Meetings of
Stockholders.
(1) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting.
(2) Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board; or (ii) provided that the Board has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who (A) is a stockholder of record at
the time of giving of notice provided for in this By-law, (B) shall
be entitled to vote at the meeting, and (C) complies with the notice
procedures set forth in this By-law. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing
one or more persons to the Board, any such stockholder may nominate
a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting, if
the stockholder's notice required by paragraph (a)(2) of this By-law
shall be delivered to the Secretary at the principal offices of the
Corporation not earlier than the 90th day prior to such special
meeting, and not later than the close of business on the later of
the 60th day and prior to such special meeting or the 10th day
following the day on which public announcement is first made of the
date of the special meeting and the nominees proposed by the Board
for election at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new
time period for the giving of a stockholder's notice as described
above.
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(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-law (or who are elected or appointed
to the Board pursuant to Article II, Section 2.02 of these By-laws)
shall be eligible to serve as directors of the Corporation and only
such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with the
procedures set forth in this By-law.
(2) Except as otherwise provided by law, the Restated Certificate of
Incorporation or these By-laws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set
forth in this By-law and if any nomination or business is not in
compliance with this By-law to declare that such defective proposal
or nomination shall be disregarded.
(3) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in
a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14, or 15(d) of the
Exchange Act.
(4) Notwithstanding the foregoing provisions of this By-law, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-law. Nothing in this
By-law shall be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of preferred stock to elect directors under specified
circumstances.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01. Number. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, of such number as
may be fixed from time to time by resolution adopted by the Board or by the
stockholders, selected, organized and continued in accordance with the
provisions of the laws of the State of Delaware. Each director hereafter elected
shall hold office until the annual meeting of stockholders and until his
successor is elected and has qualified, or until his death or until he shall
resign or shall have been removed.
SECTION 2.02. Vacancies. In case of any increase in the number of
directors, the additional director or directors, and in case of any vacancy in
the Board due to death, resignation, removal, disqualification or any other
cause, the successors to fill the vacancies shall be elected by a majority of
the directors then in office, for a term expiring at the next annual meeting of
stockholders.
SECTION 2.03. Annual Meeting. An annual meeting of the directors shall
be held each year, without notice, immediately following the annual meeting of
stockholders. The time and place of such meeting shall be designated by the
Board. At such meeting, the directors shall, after qualifying, elect from their
own number a Chairman of the Board, a President and one or more Vice
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Chairmen of the Board, and shall elect or appoint such other officers
authorized by these By-laws as they may deem desirable, and appoint the
Committees specified in Article III hereof. The directors may also elect to
serve at the pleasure of the Board, one or more Honorary Directors, not members
of the Board. Honorary Directors of the Board shall be paid such compensation
or such fees for attendance at meetings of the Board, and meetings of other
committees of the Board, as the Board shall determine from time to time.
SECTION 2.04. Regular Meetings. The Board shall hold a regular meeting
without notice at the principal office of the Corporation on the third Tuesday
in each month, with such exceptions as shall be determined by the Board, at
such time as shall be determined by the Board, unless another time or place,
within or without the State of Delaware, shall be fixed by resolution of the
Board. Should the day appointed for a regular meeting fall on a legal holiday,
the meeting shall be held at the same time on the preceding day or on such
other day as the Board may order.
SECTION 2.05. Special Meetings. Special meetings of the Board shall be
held whenever called by the Chairman, the President, a Vice Chairman of the
Board, the Secretary or a majority of the directors at the time in office. A
notice shall be given as hereinafter in this Section provided of each such
special meeting, in which shall be stated the time and place of such meeting,
but, except as otherwise expressly provided by law or by these By-laws, the
purposes thereof need not be stated in such notice. Except as otherwise provided
by law, notice of each such meeting shall be mailed to each director, addressed
to him at his residence or usual place of business, at least two (2) days before
the day on which such meeting is to be held, or shall be sent addressed to him
at such place by telegraph, cable, wireless or other form of recorded
communication or be delivered personally or by telephone not later than noon of
the calendar day before the day on which such meeting is to be held. At any
regular or special meeting of the Board, or any committee thereof, one or more
Board or committee members may participate in such meeting by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. This type of
participation shall constitute presence in person at the meeting. Notice of any
meeting of the Board shall not, however, be required to be given to any director
who submits a signed waiver of notice whether before or after the meeting, or if
he shall be present at such meeting; and any meeting of the Board shall be a
legal meeting without any notice thereof having been given if all the directors
of the Corporation then in office shall be present thereat.
SECTION 2.06. Quorum. One-third of the members of the entire Board, or
the next highest integer in the event of a fraction, shall constitute a quorum,
but if less than a quorum be present, a majority of those present may adjourn
any meeting from time to time and the meeting may be held as adjourned without
further notice.
SECTION 2.07. Rules and Regulations. The Board may adopt such rules and
regulations for the conduct of its meetings and the management of the affairs
of the Corporation as it may deem proper, not inconsistent with the laws of the
State of Delaware or these By-laws.
SECTION 2.08. Compensation. Directors shall be entitled to receive from
the Corporation such amount per annum and in addition, or in lieu thereof, such
fees for attendance at meetings of the Board or of any committee, or both, as
the Board from time to time shall determine. The Board may also likewise
provide that the Corporation shall reimburse each such director or member of
such committee for any expenses paid by him on account of his attendance at any
such meeting. Nothing in this Section contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
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ARTICLE III
Committees
SECTION 3.01. Executive Committee. The Board, by resolution adopted by a
majority of the entire Board, shall appoint an Executive Committee which, when
the Board is not in session, shall have and may exercise all the powers of the
Board that lawfully may be delegated, including without limitation the power and
authority to declare dividends. The Executive Committee shall consist of such
number of directors as the Board shall from time to time determine, but not less
than five and one of whom shall be designated by the Board as Chairman thereof,
as follows: (a) the Chairman of the Board, the President, the Vice Chairman of
the Board; and (b) such other directors, none of whom shall be an officer of the
Corporation, as shall be appointed to serve at the pleasure of the Board. The
Board, by resolution adopted by a majority of the entire Board, may (a)
designate one or more directors as alternate members of the Executive Committee
or (b) specify that the member or members of the Executive Committee present and
not disqualified from voting at a meeting of the Executive Committee, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at such meeting in place of any absent or disqualified member.
The attendance of one-third of the members of the Committee or their
substitutes, or the next highest integer in the event of a fraction, at any
meeting shall constitute a quorum, and the act of a majority of those present at
a meeting thereof at which a quorum is present shall be the act of the
Committee. All acts done and powers conferred by the Committee from time to time
shall be deemed to be, and may be certified as being done or conferred under
authority of the Board. The Committee shall fix its own rules and procedures,
and the minutes of the meetings of the Committee shall be submitted at the next
regular meeting of the Board at which a quorum is present, or if impracticable,
at the next such subsequent meeting. The Committee shall hold meetings "On Call"
and such meetings may be called by the Chairman of the Executive Committee, the
Chairman of the Board, the President, a Vice Chairman of the Board, or the
Secretary. Notice of each such meeting of the Committee shall be given by mail,
telegraph, cable, wireless or other form of recorded communication or be
delivered personally or by telephone to each member of the Committee not later
than the day before the day on which such meeting is to be held. Notice of any
such meeting need not be given to any member of the Committee who submits a
signed waiver of notice whether before or after the meeting, or if he shall be
present at such meeting; and any meeting of the Committee shall be a legal
meeting without any notice thereof having been given, if all the members of the
Committee shall be present thereat. In the case of any meeting, in the absence
of the Chairman of the Executive Committee, such member as shall be designated
by the Chairman of the Executive Committee or the Executive Committee shall act
as Chairman of the meeting.
SECTION 3.02. Audit Committee. The Board, by resolution adopted by a
majority of the entire Board, shall appoint an Audit Committee composed of not
less than three of its members, none of whom shall be an officer of the
Corporation, to hold office at its pleasure and one of whom shall be designated
by the Board as Chairman thereof. The Committee shall make such examination into
the affairs of the Corporation and make such reports in writing thereof as may
be directed by the Board. The attendance of one-third of the members of the
Committee, or the next highest integer in the event of a fraction, at any
meeting shall constitute a quorum, and the act of a majority of those present at
a meeting thereof at which a quorum is present shall be the act of the
Committee.
SECTION 3.03. Other Committees. The Board, by resolution adopted by a
majority of the entire Board, may appoint, from time to time, such other
committees composed of not less than two of its members for such purposes and
with such duties and powers as the Board may determine.
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The attendance of one-third of the members of such other committees, or the
next highest integer in the event of a fraction, at any meeting shall
constitute a quorum, and the act of a majority of those present at a meeting
thereof at which a quorum is present shall be the act of such other committees.
ARTICLE IV
OFFICERS AND AGENTS
SECTION 4.01. Officers. The officers of the Corporation shall be (a) a
Chairman of the Board, a President and one or more Vice Chairmen of the Board,
each of whom must be a director and shall be elected by the Board; (b) a Chief
Financial Officer, a Controller, a Secretary, and a General Auditor, each of
whom shall be elected by the Board; and (c) such other officers as may from time
to time be elected by the Board or under its authority, or appointed by the
Chairman or the President or a Vice Chairman of the Board.
SECTION 4.02. Clerks and Agents. The Board may elect and dismiss, or the
Chairman or the President or a Vice Chairman of the Board may appoint and
dismiss, or delegate to any other officers authority to appoint and dismiss,
such clerks, agents and employees as may be deemed advisable for the prompt and
orderly transaction of the Corporation's business, and may prescribe, or
authorize the appointing officers to prescribe, their respective duties, subject
to the provisions of these By-laws.
SECTION 4.03. Term of Office. The officers designated in Section 4.01(a)
shall be elected by the Board at its annual meeting. The officers designated in
Section 4.01(b) may be elected at the annual or any other meeting of the Board.
The officers designated in Section 4.01(c) may be elected at the annual or any
other meeting of the Board or appointed at any time by the designated proper
officers. Any vacancy occurring in any office designated in Section 4.01(a) may
be filled at any regular or special meeting of the Board. The officers elected
pursuant to Section 4.01(a) shall each hold office for the term of one year and
until their successors are elected, unless sooner disqualified or removed by a
vote of two-thirds of the whole Board. All other officers, clerks, agents and
employees elected by the Board, or appointed by the Chairman, the President, or
a Vice Chairman of the Board, or under their authority, shall hold their
respective offices at the pleasure of the Board or officers elected pursuant to
Sections 4.01(a).
SECTION 4.04. Chairman of the Board. The Chairman shall be the chief
executive officer of the Corporation and shall have, subject to the control of
the Board, general supervision and direction of the business and affairs of the
Corporation and of its several officers. He shall preside at all meetings of the
stockholders and at all meetings of the Board. He shall have the right to
execute any document or perform any act which could be or is required to be
executed or performed by the President of the Corporation. He shall have the
power to sign checks, orders, contacts, leases, notes, drafts and other
documents and instruments in connection with the business of the Corporation,
and together with the Secretary or an Assistant Corporate Secretary execute
conveyances of real estate and other documents and instruments to which the seal
of the Corporation is affixed. He shall perform such other duties as from time
to time may be prescribed by the Board.
SECTION 4.05. President. The President shall, subject to the direction
and control of the Board and the Chairman, participate in the supervision of the
business and affairs of the Corporation. In general, the President shall perform
all duties incident to the office of President, and such other duties as from
time to time may be prescribed by the Board or the Chairman. In the absence of
the Chairman, the President, shall preside at meetings of stockholders and of
the Board.
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The President shall have the same power to sign for the Corporation as is
prescribed in these By-laws for the Chairman.
SECTION 4.06. Vice Chairman of the Board. The Vice Chairman of the
Board, or if there be more than one, then each of them, shall, subject to the
direction and control of the Board and the Chairman, participate in the
supervision of the business and affairs of the Corporation, and shall have such
other duties as may be prescribed from time to time by the Board or the
Chairman. In the absence of the Chairman and the President, a Vice Chairman, as
designated by the Chairman or the Board, shall preside at meetings of the
stockholders and of the Board. Each Vice Chairman shall have the same power to
sign for the Corporation as is prescribed in these By-laws for the Chairman.
SECTION 4.07. Chief Financial Officer. The Chief Financial Officer
shall have such powers and perform such duties as the Board, the Chairman, the
President or a Vice Chairman of the Board may from time to time prescribe which
may include, without limitation, responsibility for strategic planning,
corporate finance, control, tax and auditing and shall perform such other
duties as may be prescribed by these By-laws.
SECTION 4.08. Controller. The Controller shall exercise general
supervision of the accounting departments of the Corporation. He shall be
responsible to the Chief Financial Officer and shall render reports from time
to time relating to the general financial condition of the Corporation. He
shall render such other reports and perform such other duties as from time to
time may be prescribed by the Chief Financial Officer, a Vice Chairman of the
Board, the President or the Chairman.
SECTION 4.09. Secretary. The Secretary shall:
(a) record all the proceedings of the meetings of the stockholders, the
Board and the Executive Committee in one or more books kept for that
purpose;
(b) see that all notices are duly given in accordance with the
provisions of these By-laws or as required by law;
(c) be custodian of the seal of the Corporation; and he may see that
such seal or a facsimile thereof is affixed to any documents the
execution of which on behalf of the Corporation is duly authorized
and may attest such seal when so affixed; and
(d) in general, perform all duties incident to the office of Secretary
and such other duties as from time to time may be prescribed by the
Board and the Chairman.
SECTION 4.10. Assistant Corporate Secretary. At the request of the
Secretary, or in case of his absence or inability to act, the Assistant
Corporate Secretary, or if there be more than one, any of the Assistant
Corporate Secretaries, shall perform the duties of the Secretary and, when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Secretary. Each Assistant Corporate Secretary shall perform such other
duties as from time to time may be prescribed by the Secretary, a Vice Chairman
of the Board, the President or the Chairman.
SECTION 4.11. General Auditor. The General Auditor shall continuously
examine the affairs of the Corporation. He shall have and may exercise such
powers and duties as from time to time may be prescribed by the Board, the
Chairman, a Vice Chairman of the Board, the President or the Chief Financial
Officer.
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SECTION 4.12. Powers and Duties of Other Officers. The powers and
duties of all other officers of the Corporation shall be those usually
pertaining to their respective offices, subject to the direction and control of
the Board and as otherwise provided in these By-laws.
ARTICLE V
PROXIES RE STOCK OR OTHER SECURITIES OF
OTHER CORPORATIONS
Unless otherwise provided by the Board, the Chairman, the President, a
Vice Chairman of the Board, the Chief Financial Officer or the Secretary may
from time to time (a) appoint an attorney or attorneys or an agent or agents of
the Corporation to exercise in the name and on behalf of the Corporation the
powers and rights which the Corporation may have as the holder of stock or
other securities in any other corporation to vote or consent in respect of such
stock or other securities; (b) instruct the person or persons so appointed as
to the manner of exercising such powers and rights; and (c) execute or cause to
be executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in order that the Corporation may exercise its
said powers and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 6.01. Certificates for Stock. Every owner of stock of the
Corporation of any class (or, if stock of any class shall be issuable in
series, any series of such class) shall be entitled to have a certificate, in
such form as the Board shall prescribe, certifying the number of shares of
stock of the Corporation of such class, or such class and series, owned by him.
The certificates representing shares of stock of each class (or, if there shall
be more than one series of any class, each series of such class) shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the Corporation by the Chairman, the President, or a Vice Chairman of
the Board, and by the Secretary or an Assistant Corporate Secretary; provided,
however, that if any such certificate is countersigned by a registrar and the
Board shall by resolution so authorize, the signatures of such Chairman,
President, Vice Chairman of the Board, Secretary or Assistant Corporate
Secretary or any transfer agent may be facsimiles. In case any officer or
officers or transfer agent of the Corporation who shall have signed, or whose
facsimile signature or signatures shall have been placed upon any such
certificate shall cease to be such officer or officers or transfer agent before
such certificate shall have been issued, such certificate may be issued by the
Corporation with the same effect as though the person or persons who signed
such certificate, or whose facsimile signature or signatures shall have been
placed thereupon were such officer and officers or transfer agent at the date
of issue. A stock ledger shall be kept of the respective names of the persons,
firms or corporations owning stock represented by certificates for stock of the
Corporation, the number, class and series of shares represented by such
certificates, respectively, and the respective dates thereof, and in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be cancelled and
a new certificate or certificates shall not be issued in exchange for any
existing certificate until such existing certificate shall have been so
cancelled, except in cases provided for in Section 6.04 or otherwise required
by law.
SECTION 6.02. Transfers of Stock. Transfers of shares of the stock of
the Corporation shall be made on the stock books and records of the Corporation
only by the registered holder
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thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary, or with a transfer agent duly appointed,
and upon surrender of the certificate or certificates for such shares properly
endorsed and payment of all taxes thereon. The person in whose name shares of
stock stand on the stock books and records of the Corporation shall be deemed
the owner thereof for all purposes as regards the Corporation.
SECTION 6.03. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for stock of
the Corporation. The Board may appoint, or authorize any officer or officers to
appoint, one or more transfer agents and one or more registrars, and may
require all certificates for stock to bear the signature or signatures of any
of them.
SECTION 6.04. Lost, Stolen, Destroyed and Mutilated Certificates. The
owner of any stock of the Corporation shall immediately notify the Corporation
of any loss, theft, destruction, or mutilation of the certificate therefor, and
the Corporation may issue a new certificate for stock in the place of any
certificate theretofore issued by it and alleged to have been lost, stolen or
destroyed, and the Board may, in its discretion, require the owner of the lost,
stolen or destroyed certificate or his legal representatives to give the
Corporation a bond in such sum, limited or unlimited, and in such form and with
such surety or sureties, as the Board shall in its uncontrolled discretion
determine, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate, or the issuance of such new certificate. The Board may, however, in
its discretion refuse to issue any such new certificate except pursuant to
legal proceedings under the laws of the State of Delaware in such case made and
provided.
SECTION 6.05. Fixing Date for Determination of Stockholders of Record.
(a) 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, the Board may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board, and which record
date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no record is fixed by the Board,
the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board. If no record date has been
fixed by the Board, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by Delaware
General Corporation Law, shall be the first date on which signed
written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of
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the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required by Delaware General
Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which
the Board adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action, the Board may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record
date is fixed, the record date for determining stockholders for
any such purpose shall be the close of business on the day on
which the Board adopts the resolution relating thereto.
ARTICLE VII
CORPORATE SEAL
The corporate seal of the Corporation shall be in the form of a
circle and shall bear the full name of the Corporation and the words and
figures "Corporate Seal 1968 Delaware".
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Right to Indemnification. The Corporation shall
to the fullest extent permitted by applicable law as then in effect indemnify
any person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness), or is threatened to be made so
involved, in any threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, administrative or investigative (including
without limitation, any action, suit or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that he 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 or employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such Proceeding. Such
indemnification shall be a contract right and shall include the right to
receive payment in advance of any expenses incurred by the Indemnitee in
connection with such Proceeding, consistent with the provisions of applicable
law as then in effect.
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SECTION 9.02. Contracts and Funding. The Corporation may enter into
contracts with any director, officer, employee or agent of the Corporation in
furtherance of the provisions of this Article IX and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification as provided in this Article IX.
SECTION 9.03. Employee Benefit Plans. For purposes of this Article IX,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee,
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner not opposed to the best interest of a corporation.
SECTION 9.04. Indemnification Not Exclusive Right. The right of
indemnification and advancement of expenses provided in this Article IX shall
not be exclusive of any other rights to which a person seeking indemnification
may otherwise be entitled, under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. The provisions of this Article IX shall inure to the benefit of the
heirs and legal representatives of any person entitled to indemnity under this
Article IX and shall be applicable to Proceedings commenced or continuing
after the adoption of this Article IX, whether arising from acts or omissions
occurring before or after such adoption.
SECTION 9.05. Advancement of Expenses; Procedures. In furtherance, but
not in limitation, of the foregoing provisions, the following procedures and
remedies shall apply with respect to advancement of expenses and the right to
indemnification under this Article IX:
(a) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of the Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Corporation within twenty (20) days after the receipt by
the Corporation of a statement or statements from the indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by the Indemnitee and, if required by law at the
time of such advance, shall include or be accompanied by an undertaking by or
on behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such expenses.
(b) Written Request for Indemnification. To obtain indemnification
under this Article IX, an Indemnitee shall submit to the Secretary of the
Corporation a written request, including such documentation and information as
is reasonably available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the Indemnitee's entitlement
to indemnification shall be made within a reasonable time after receipt by the
Corporation of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Corporation shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
the Indemnitee has requested indemnification.
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(c) Procedure for Determination. The Indemnitee's entitlement to
indemnification under this Article IX shall be determined (i) by the Board by a
majority vote of a quorum (as defined in Article II of these By-laws)
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders, but only if a majority of the
disinterested directors, if they constitute a quorum of the board, presents
the issue of entitlement to indemnification to the stockholders for their
determination.
ARTICLE X
BY-LAWS
SECTION 10.01. Inspection. A copy of the By-laws shall at all times be
kept in a convenient place at the principal office of the Corporation, and
shall be open for inspection by stockholders during business hours.
SECTION 10.02. Amendments. Except as otherwise specifically provided by
statute, these By-laws may be added to, amended, altered or repealed at any
meeting of the Board by vote of a majority of the entire Board, provided that
written notice of any such proposed action shall be given to each director
prior to such meeting, or that notice of such addition, amendment, alteration
or repeal shall have been given at the preceding meeting of the Board.
SECTION 10.03. Construction. The masculine gender, where appearing in
these By-laws, shall be deemed to include the feminine gender.
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