1
EXHIBIT 3.2
BY-LAWS
OF
STEWART INFORMATION SERVICES CORPORATION
ARTICLE I
OFFICES
SECTION 1.1. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Wilmington, County
of New Castle, and the name of its registered agent shall be The Corporation
Trust Company.
SECTION 1.2. Other Offices. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Place of Meeting. All meetings of stockholders
for the election of directors shall be held at such place, either within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting.
SECTION 2.2. Annual Meeting. The annual meeting of
stockholders shall be held at such date and time as shall be designated from
time to time by the Board of Directors and stated in the notice of the meeting.
SECTION 2.3. Voting List. The officer who has charge of stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice, or if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 2.4. Special Meeting. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board or by the President or by the Board of Directors or by written order
of a majority of the directors and shall be called by the President or the
1
2
Secretary at the request in writing of stockholders owning a majority in amount
of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose of the proposed meeting.
The Chairman of the Board or the President or directors so calling, or the
stockholders so requesting, any such meeting shall fix the time and any place,
either within or without the State of Delaware, as the place for holding such
meeting.
SECTION 2.5. Notice of Meeting. Written notice of the annual,
and each special meeting of stockholders, stating the time, place and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat,
not less than ten nor more than 60 days before the meeting.
SECTION 2.6. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at any meeting of stockholders
for the transaction of business except at each election of directors and as
otherwise provided by statute or by the Certificate of Incorporation. At each
meeting for the election of directors the holders of a majority of the Common
Stock and the holders of a majority of the Class B Common Stock, issued and
outstanding of each such class, and entitled to vote thereat, present in person
or represented by proxy shall constitute a quorum. Notwithstanding the other
provisions of the Certificate of Incorporation or these by-laws, the holders of
a majority of the shares of capital stock entitled to vote thereat, present in
person or represented by proxy, whether or not a quorum is present, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. If
the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified.
SECTION 2.7. Voting.
(a) Unless express provision of applicable statute, of the
Certificate of Incorporation or of these by-laws shall provide to the contrary,
at each meeting of stockholders each holder of capital stock of the Corporation
shall be entitled to cast one vote for each share of capital stock registered in
his or its name on the books of the Corporation on the record date for
determination of stockholders entitled to notice of, and to vote at, such
meeting on each matter properly submitted to stockholders at each meeting. If
any stockholder entitled to vote at any meeting shall be present at such meeting
and such stockholder shall abstain, whether in person or by proxy, from casting
the vote or votes which he or it is entitled to cast at such meeting, such
abstention shall not affect the determination of the presence of a quorum at
such meeting. For all purposes of these by-laws, an abstention from voting on
any matter properly submitted to stockholders at a meeting shall not be
considered a vote cast for or against such matter.
2
3
(b) Each stockholder having the right to vote shall be
entitled to vote in person or by proxy appointed by an instrument in writing
subscribed by stockholder, bearing a date not more than three years prior to
voting, unless such instrument provides for a longer period, and filed with the
Secretary of the Corporation before, or at the time of, the meeting. If such
instrument shall designate two or more persons to act as proxies, unless such
instrument shall provide to the contrary, a majority of such persons present at
any meeting at which their powers thereunder are to be exercised shall have and
may exercise all of the powers of voting or giving consents thereby conferred,
or if only one be present, then such powers may be exercised by that one, or if
any even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect to the
same portion of the shares as he is of the proxies representing such shares.
(c) An instrument in writing subscribed by stockholder and
appointing a proxy may confer upon such proxy discretionary power to vote on any
matter that may come before an annual meeting of the stockholders of the
corporation unless, with respect to a particular matter, (i) the corporation
receives, by certified mail, return receipt requested, addressed to the
corporation's Secretary, notice not later than the 15th day of February next
preceding the annual meeting that the matter will be presented at the annual
meeting and (ii) the corporation fails to include in its proxy statement for the
annual meeting advice on the nature of the matter and how the corporation
intends to exercise its discretion to vote on the matter.
(d) When a quorum is present at any meeting of stockholders, a
majority of the shares voted in person or by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of applicable statute, of the Certificate of Incorporation or of these
by-laws, a different vote is required, in which case such express provision
shall govern and control the decision of such question.
(e) When a quorum is present at any meeting of stockholders at
which the Board of Directors is to be elected, the stockholders shall elect such
directors by a plurality of the shares voted in person or by proxy. All votes
for election of directors that are cast in person shall be cast by written
ballot.
SECTION 2.8. Consent of Stockholders. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if all the stockholders
who would have been entitled to vote upon the action if such meeting were held
shall consent in writing to such corporate action being taken; or if the
Certificate of Incorporation authorizes the action to be taken with the written
consent of the holders of less than all the stock who would have been entitled
to vote upon the action if a meeting were held, then on the written consent of
the stockholders having not less than such percentage of the number of votes as
may be authorized in the Certificate of Incorporation; provided that in no case
shall the written consent be by the holders of
3
4
stock having less than the minimum percentage of the vote required by statute
for the proposed corporate action, and provided that prompt notice must be given
to all stockholders of the taking of corporate action without a meeting and by
less than unanimous consent.
SECTION 2.9. Voting of Stock of Certain Holders. Shares
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent or proxy as the by-laws of such corporation may
prescribe, or in the absence of such provision, as the Board of Directors of
such corporation may determine. Shares standing in the name of a deceased person
may be voted by the executor or administrator of such deceased person, either in
person or by proxy. Shares standing in the name of a guardian, conservator or
trustee may be voted by such fiduciary, either in person or by proxy, but no
such fiduciary shall be entitled to vote shares held in such fiduciary capacity
without a transfer of such shares into the name of such fiduciary. Shares
standing in the name of a receiver may be voted by such receiver. A stockholder
whose shares are pledged shall be entitled to vote such shares, unless in the
transfer by the pledgor on the books of the corporation, he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee, or his
proxy, may represent the stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not vote,
directly or indirectly, shares of its own stock owned by it; and such shares
shall not be counted in determining the total number of outstanding shares.
SECTION 2.11. Fixing Record Date. The Board of Directors may
fix in advance a date, not exceeding 60 days preceding the date of any meeting
of stockholders, or the date for payment of any dividend or distribution, or the
date for the allotment of rights, or the date when any change, or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining a consent, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend or distribution, or
to receive any such allotment of rights, or to exercise the rights in respect of
any such change, conversion or exchange of capital stock, or to give such
consent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, any such meeting and any adjournment thereof, or to receive
payment of such dividend or distribution, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record date fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. Powers. The business and affairs of the
corporation shall be managed by 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 statute or by the Certificate of Incorporation or by these by-laws directed
or required to be exercised or done by the stockholders.
4
5
SECTION 3.2. Number, Election and Term. The number of
directors which shall constitute the whole Board shall be NINE. Unless such
number if fixed by express provision of the statutes or the Certificate of
Incorporation, in which case such express provision shall govern and control,
the number of directors shall from time to time be fixed and determined by the
directors and shall be set forth in the notice of any meeting of stockholders
held for the purpose of electing directors. The directors shall be elected at
the annual meeting of stockholders, except as provided in Section 3.3, and each
director elected shall hold office until his successor shall be elected and
shall qualify. Directors need not be residents of Delaware or stockholders of
the corporation.
SECTION 3.3. Vacancies, Additional Directors and Removal from
Office. If any vacancy occurs in the members of the Board of Directors elected
by the holders of Common stock caused by death, resignation, retirement,
disqualification or removal from office of any such director, or otherwise, or
if any new directorship to be elected by the holders of Common stock is created
by an increase in the authorized number of directors, a majority of the
directors then in office elected by the holders of Common stock, though less
than a quorum, or a sole remaining such director, may choose a successor or fill
the newly created directorship; and a director so chosen shall hold office until
the next annual election and until his successor shall be duly elected and shall
qualify, unless sooner displaced. If any vacancy occurs in the members of the
Board of Directors elected by the holders of Class B Common stock caused by
death, resignation, retirement, disqualification or removal from office of any
such director, or otherwise, or if any new directorship to be elected by the
holders of Class B Common stock is created by an increase in the authorized
number of directors, a majority of the directors then in office elected by the
holders of Class B Common stock, though less than a quorum, or a sole remaining
such director, may choose a successor or fill the newly created directorship;
and a director so chosen shall hold office until the next annual election and
until his successor shall be duly elected and shall qualify, unless sooner
displaced. A director may be removed either for or without cause at any special
meeting of stockholders duly called and held for such purpose except that only
the stockholders entitled to vote for any such director may vote for the removal
of such director.
SECTION 3.4. Regular Meeting. A regular meeting of the Board
of Directors shall be held each year, without other notice than this by-law, at
the place of, and immediately following, the annual meeting of stockholders; and
other regular meetings of the Board of Directors shall be held each year, at
such time and place as the Board of Directors may provide, by resolution, either
within or without the State of Delaware, without other notice than such
resolution.
SECTION 3.5. Special Meeting. A special meeting of the Board
of Directors may be called by the Chairman of the Board or by the President and
shall be called by the Secretary on the written request of any two directors.
The Chairman or President so calling, or the directors so requesting, any such
meeting shall fix the time and any place, either within or without the State of
Delaware, as the place for holding such meeting.
5
6
SECTION 3.6. Notice of Special Meeting. Written notice of
special meetings of the Board of Directors shall be given to each director at
least 48 hours prior to the time of such meeting; provided however, in instances
where notice of such meeting is given orally, by telephone or telegraph, such
notice need be given only 24 hours prior to such meeting. Any director may waive
notice of any meeting. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting for the purpose of objecting to
the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in notice or waiver
of notice of such meeting, except that notice shall be given of any proposed
amendment to the by-laws if it is to be adopted at any special meeting or with
respect to any other matter where notice is required by statute.
SECTION 3.7. Quorum and Vote Required. Six of the nine members
of the Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and the act of six of the
directors shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these by-laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 3.8. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof as provided in Article IV of these by-laws, may be
taken without a meeting, if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board or committee.
SECTION 3.9. Compensation. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders or the Board of Directors; but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors or any
meeting of a committee of directors. No provision of these by-laws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
SECTION 3.10. Nomination of Directors to be Elected by Holders
of Common Stock. Only persons who are nominated in accordance with the following
procedures are eligible for election as directors by the holders of the Common
Stock of the corporation. Nominations of persons for election by the holders of
Common Stock to the Board of Directors of the corporation may be made at a
meeting of stockholders provided such nominations are made by or at the
direction of the Board of Directors or by a nominating committee appointed by
the Board of Directors or a person appointed by the Board of Directors to
6
7
make nominations. Nominations may also be made by any holder of Common Stock of
the corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this section. Nominations,
if made by a stockholder of the corporation, shall be made pursuant to timely
notice in writing addressed to the secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not later than the 15th day of
February next preceding the annual meeting of stockholders.
SECTION 3.11. Advisory Directors. The Board of Directors may
elect from one (1) to nine (9) (as it may decide) Advisory Members of the Board
of Directors who may meet with the Board of Directors at such Board Meeting to
which they are invited by the Chairman of the Board, or the President or
Executive Vice President (it being realized that there may be meetings not
deemed important enough to warrant time and travel expense of all or a part of
the Advisory Members), and give the Board of Directors the benefit of their
advice and counsel. The Advisory Members of the Board of Directors may be
elected at any regular or special meeting of the Board of Directors. The
Advisory Members of the Board of Directors shall receive the same fee for
attending a meeting that a Director receives and shall be paid their travel
expenses, if any, incurred in attending meetings of the Board of Directors. No
such payment shall preclude any Director from serving the corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.1. Designation, Powers and Name. The Board of
Directors may, by resolution passed by a majority of the whole Board, designate
one or more committees, including, if they shall so determine, an Executive
Committee, each such committee to consist of two or more of the directors of the
corporation. The committee shall have and may exercise such of the powers of the
Board of Directors in the management of the business and affairs of the
corporation as may be provided in such resolution. The committee may authorize
the seal of the corporation to be affixed to all papers which may require it.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names and such limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 4.2. Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of Directors
when required.
SECTION 4.3. Compensation. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
7
8
ARTICLE V
NOTICE
SECTION 5.1. Methods of Giving Notice. Whenever under the
provisions of the statutes, the Certificate of Incorporation or these by-laws,
notice is required to be given to any director, member of any committee or
stockholder, such notice shall be in writing and delivered personally or mailed
to such director, member or stockholder; provided that in the case of a director
or a member of any committee such notice may be given orally or by telephone or
telegram. If mailed, notice to a director, member of a committee or stockholder
shall be deemed to be given when deposited in the United States mail first class
in a sealed envelope, with postage thereon prepaid, addressed, in the case of a
stockholder, to the stockholder at the stockholder's address as it appears on
the records of the corporation or, in the case of a director or a member of a
committee, to such person at his business address. If sent by telegraph, notice
to a director or member of a committee shall be deemed to be given when the
telegram, so addressed, is delivered to the telegraph company.
SECTION 5.2. Written Waiver. Whenever any notice is required
to be given under the provisions of the statutes, the Certificate 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 thereto.
ARTICLE VI
OFFICERS
SECTION 6.1. Officers. The officers of the corporation are
Chairman of the Board and Co-Chief Executive Officer, a President and Co-Chief
Executive Officer, a Senior Executive Vice President-Assistant Chairman, a
Senior Executive Vice President-Assistant President, one or more Vice
Presidents, any one or more which may be designated an Executive Vice President
and/or Senior Vice President, a Vice President-Finance, a Secretary, a Treasurer
and a Controller. The Board of Directors may by resolution create the office of
Vice Chairman of the Board and define the duties of such office. The Board of
Directors may appoint such other officers and agents including Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers, as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined by the Board. Any two or
more offices, other than the offices of President and Secretary, may be held by
the same person. No officer shall execute, acknowledge, verify or countersign
any instrument on behalf of the corporation in more than one capacity, if such
instrument is required by law, by these by-laws or by any act of the corporation
to be executed, acknowledged, verified or countersigned by two or more officers.
The Chairman of the Board and Co-Chief Executive Officer and the President and
Co-Chief Executive Officer shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and none of
the officers need be a stockholder of the corporation.
8
9
SECTION 6.2. Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently possible. Each officer shall hold office until his
successor shall have been chosen and shall have qualified or until his death or
the effective date of his resignation or removal, or until he shall cease to be
a director in the case of the Chairman of the Board and Co-Chief Executive
Officer and the President and Co-Chief Executive Officer.
SECTION 6.3. Removal and Resignation. Any officer or agent
elected or appointed by the Board of Directors may be removed with cause by the
affirmative vote of the Board of Directors whenever, in its judgment, the best
interests of the corporation shall be served thereby, but such removal shall be
without prejudice to the contractual rights, if any, of the person so removed.
Any officer may resign at any time by giving written notice to the corporation.
Any such resignation shall take effect at the date of the receipt of such notice
or at any later time specified therein, and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 6.4. Vacancies. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise, may be filled by
the Board of Directors for the unexpired portion of the term.
SECTION 6.5. Salaries. The salaries of all officers and agents
of the corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
SECTION 6.6. Chairman of the Board and Co-Chief Executive
Officer. The Chairman of the Board and Co-Chief Executive Officer shall preside
at all meetings of the Board of Directors or of the stockholders of the
corporation. In the Chairman's absence, or at the election of the President and
Co-Chief Executive Officer and the Chairman of the Board and Co-Chief Executive
Officer, such duties shall be attended to by the President and Co-Chief
Executive Officer. The Chairman of the Board and the President shall formulate
and submit to the Board of Directors or the Executive Committee matters of
general policy for the corporation and shall perform such other duties as
usually appertain to the office or as may be prescribed by the Board of
Directors or the Executive Committee. The Chairman of the Board and Co-Chief
Executive Officer shall, with the President and Co-Chief Executive Officer, be
the principal executive officer of the corporation and, subject to the control
of the Board of Directors, shall in general supervise and control the business
and affairs of the corporation. The Chairman of the Board and Co-Chief Executive
Officer, acting with the President and Co-Chief Executive Officer shall have the
power to appoint and remove subordinate officers, agents and employees, except
those elected or appointed by the Board of Directors. The Chairman of the Board
and Co-Chief Executive Officer, acting with the President and Co-Chief Executive
Officer, shall keep the Board of Directors and the Executive Committee fully
informed about matters that are material to the corporation and shall consult
them concerning the business of the corporation. Either or both may sign with
the Secretary or any other officer of the corporation thereunto
9
10
authorized by the Board of Directors, certificates for shares of the corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof has been expressly delegated by
these by-laws or by the Board of Directors to some other officer or agent of the
corporation, or shall be required by law to be otherwise executed. Either or
both the Chairman of the Board and the President shall vote, or give a proxy to
any other officer of the corporation to vote, all shares of stock of any other
corporation standing in the name of the corporation and in general they shall
perform all other duties normally incident to the office of the Chairman of the
Board and Co-Chief Executive Officer and President and Co-Chief Executive
Officer, and such other duties as may be prescribed by the stockholders, the
Board of Directors or the Executive Committee from time to time. In the absence
of the President and Co-Chief Executive Officer, or in the event such officer is
unable or refuses to act, the Chairman of the Board and Co-Chief Executive
Officer shall perform the duties and exercise the powers of the President and
Co-Chief Executive Officer. If the office of the President is vacant, the
Chairman of the Board shall be the Chief Executive Officer.
SECTION 6.7. President and Co-Chief Executive Officer. The
President and Co-Chief Executive Officer shall, with the Chairman of the Board
and Co-Chief Executive Officer, be the principal executive officer of the
corporation and subject to the control of the Board of Directors, shall in
general supervise and control the business and affairs of the corporation. In
the absence of the Chairman of the Board and Co-Chief Executive Officer, the
President and Co-Chief Executive Officer shall preside at all meetings of the
Board of Directors and of the Stockholders. The President and Co-Chief Executive
Officer, acting with the Chairman of the Board and Co-Chief Executive Officer,
shall have the power to appoint and remove subordinate officers, agents and
employees, except those elected or appointed by the Board of Directors. The
President and Co-Chief Executive Officer, acting with the Chairman of the Board
and Co-Chief Executive Officer, shall keep the Board of Directors and the
Executive Committee fully informed about matters that are material to the
corporation and shall consult them concerning the business of the corporation.
Either or both may sign with the Secretary or any other officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments which the Board of Directors has authorized
to be executed, except in cases where the signing and execution thereof has been
expressly delegated by these by-laws or by the Board of Directors to some other
officer or agent of the corporation, or shall be required by law to be otherwise
executed. Either or both the Chairman of the Board and the President shall vote,
or give a proxy to any other officer of the corporation to vote, all shares of
stock of any other corporation standing in the name of the corporation and in
general they shall perform all other duties normally incident to the office of
President and Co-Chief Executive Officer and Chairman of the Board and Co-Chief
Executive Officer and such other duties as may be prescribed by the
stockholders, the Board of Directors or the Executive Committee from time to
time. In the absence of the Chairman of the Board and Co-Chief
10
11
Executive Officer, or in the event such officer is unable or refuses to act, the
President and Co-Chief Executive Officer shall perform the duties and exercise
the powers of the Chairman of the Board and Co-Chief Executive Officer. If the
office of the Chairman of the Board is vacant, the President shall be the Chief
Executive Officer.
SECTION 6.8. Vice President. In the absence of the President
and Co-Chief Executive Officer and the Chairman of the Board and Co-Chief
Executive Officer, or in the event both are unable or refuse to act, either or
both the Senior Executive Vice President-Assistant Chairman and the Senior
Executive Vice President-Assistant President (or in the event both such offices
are vacant or both such officers are unable or refuse to act, the Vice
President-Finance) shall perform the duties and exercise the powers of the
President and Co-Chief Executive Officer and the Chairman of the Board and
Co-Chief Executive Officer. In the event the offices of both Chairman and
President are vacant, the Senior Executive Vice President-Assistant Chairman
shall perform the duties and exercise the powers of the Chairman and Co-Chief
Executive Officer and the Senior Executive Vice President-Assistant President
shall perform the duties and exercise the powers of the President and Co-Chief
Executive Officer. Any Vice President may sign, with the Secretary or Assistant
Secretary, certificates for shares of the corporation. The Vice Presidents shall
perform such other duties as from time to time may be assigned to them by the
Chairman, the President, the Board of Directors or the Executive Committee. The
Assistant Vice Presidents shall have the powers delegated to them from time to
time by the Board of Directors, the Executive Committee or a co-chief executive
officer and or any vice president.
SECTION 6.9. Secretary. The Secretary shall (a) keep the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; (b) see that all notices are duly given in accordance
with the provisions of these by-laws and as required by law; (c) be custodian of
the corporate records and of the seal of the corporation, and see that the seal
of the corporation or a facsimile thereof is affixed to all certificates for
shares prior to the issue thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these by-laws; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the President, or an Executive Vice President or Vice
President, certificates for shares of the corporation, the issue of which shall
have been authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general,
perform all duties normally incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the President, the Board
of Directors or the Executive Committee.
SECTION 6.10. Treasurer. 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
shall determine. He shall have charge and custody of and be responsible for all
funds and securities of the corporation; receive and give receipts for monies
11
12
due and payable to the corporation from any source whatsoever and deposit all
such monies in the name of the corporation in such banks, trust companies or
other depositories as shall be selected in accordance with the provisions of
Section 7.3 of these by-laws, and in general, perform all duties normally
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him by the President, the Board of Directors or the Executive
Committee.
SECTION 6.11. Controller. The Controller shall prepare, or
cause to be prepared, for submission at each regular meeting of the Board of
Directors, at each annual meeting of the stockholders, and at such other times
as may be required by the Board of Directors, the President or the Executive
Committee, a statement of financial condition of the corporation in such detail
as may be required; and in general, perform all the duties incident to the
office of Controller and such other duties as from time to time may be assigned
to him by the President, the Board of Directors or the Executive Committee.
SECTION 6.12. Assistant Secretary or Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the President, the Board of Directors or the Executive Committee. The Assistant
Secretaries and Assistant Treasurers shall, in the absence of the Secretary or
Treasurer, respectively, perform all functions and duties which such absent
officers may delegate, but such delegation shall not relieve the absent officer
from the responsibilities and liabilities of his office. The Assistant
Secretaries may sign, with the President or a Vice President, certificates for
shares of the corporation, the issue of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.1. Contracts. Subject to the provisions of Section
6.1, the Board of Directors may authorize any officer, officers, agent or
agents, to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the corporation, and such authority may be general or
confined to specific instances.
SECTION 7.2. Checks, etc. All checks, demands, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation, shall be signed by such officer or officers or
such agent or agents of the corporation, and in such manner, as shall be
determined by the Board of Directors.
SECTION 7.3. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the Board of
Directors may select.
12
13
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.1. Issuance. Each stockholder of this corporation
shall be entitled to a certificate or certificates showing the number of shares
of stock registered in his name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name and
number of shares and shall be signed by the President or a Vice President and by
the Secretary or an Assistant Secretary. If any certificate is countersigned (1)
by a transfer agent other than the corporation or any employee of the
corporation, or (2) by a registrar other than the corporation or any employee of
the corporation, any other signature on the certificate may be a facsimile. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and rights shall be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class of stock;
provided that, except as otherwise provided by statute, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate which
the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish to each stockholder who so requests
the designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and qualifications,
limitations or restrictions of such preferences and rights. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in the case of a
lost, stolen, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and with such indemnity, if any, to the corporation as
the Board of Directors may prescribe. Certificates shall not be issued
representing fractional shares of stock.
SECTION 8.2. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require or to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate or certificates alleged to have been
lost, stolen or destroyed, or both.
13
14
SECTION 8.3. Transfers. 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 to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney and filed with the Secretary of the
corporation or the Transfer Agent.
SECTION 8.4. Registered Stockholders. The corporation shall
be entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.1. Declaration. Dividends upon the capital stock of
the corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
SECTION 9.2. Reserve. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conclusive to the interest of the corporation, and the Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Third Party Actions. The corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) 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, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
14
15
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 10.2. Actions by or in the Right of the Corporation.
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor 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, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for misconduct in the performance of his duty to the corporation unless
and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 10.3. Determination of Conduct. The determination that
an officer, director, employee or agent, has met the applicable standard of
conduct set forth in Sections 10.1 and 10.2 (unless indemnification is ordered
by a court) shall be made (1) by the Board of Directors by a majority vote of a
quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) 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 (3) by the stockholders.
SECTION 10.4. Payment of Expenses in Advance. Expenses
incurred in defending a civil or criminal action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article X.
15
16
SECTION 10.5. Indemnity Not Exclusive. The indemnification and
advancement of expenses provided hereunder or granted pursuant hereto shall not
be deemed exclusive of any other rights to which those seeking indemnification
or the advancement of expenses may be entitled under any other 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 indemnification and advancement of expenses provided
hereunder or granted pursuant hereto shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
SECTION 11.2. Books. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation at Houston, Texas, or at such other
place or places as may be designated from time to time by the Board of
Directors.
ARTICLE XII
AMENDMENT
SECTION 12.1. These by-laws may be altered, amended or
repealed at any regular or special meeting of the Board of Directors if (i)
notice of such alteration, amendment or repeal is contained in the notice of
such meeting and (ii) such alteration, amendment or repeal is approved by a
majority vote of the directors elected by the holders of the Common Stock and a
majority vote of the directors elected by the holders of Class B Common Stock;
with each such class of directors voting separately.
16