1
EXHIBIT 1.A(6)(b)
AMENDED AND RESTATED
BYLAWS
OF
A I M DISTRIBUTORS, INC.
Adopted Effective 2-11-97
---------
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I - OFFICES
SECTION 1.1. Registered Office .......................................... 1
SECTION 1.2. Other Offices .............................................. 1
ARTICLE II - MEETINGS OF STOCKHOLDERS
SECTION 2.1. Annual Meeting ............................................. 1
SECTION 2.2. Voting List ................................................ 1
SECTION 2.3. Special Meeting ............................................ 2
SECTION 2.4. Notice of Meeting .......................................... 2
SECTION 2.5. Quorum ..................................................... 2
SECTION 2.6. Voting ..................................................... 2
SECTION 2.7. Organization of Meetings ................................... 3
SECTION 2.8. Consent of Stockholders .................................... 4
SECTION 2.9. Voting of Stock of Certain Holders ......................... 4
SECTION 2.10. Treasury Stock ............................................. 5
SECTION 2.11. Fixing Record Date ......................................... 5
ARTICLE III - BOARD OF DIRECTORS
SECTION 3.1. Powers ..................................................... 5
SECTION 3.2. Number, Election and Term .................................. 5
SECTION 3.3. Vacancies, Additional Directors and Removal From Office .... 6
SECTION 3.4. Regular Meeting ............................................ 6
SECTION 3.5. Special Meeting ............................................ 6
SECTION 3.6. Notice of Special Meeting .................................. 6
SECTION 3.7. Quorum and Participation ................................... 7
SECTION 3.8. Action Without Meeting ..................................... 7
SECTION 3.9. Compensation ............................................... 7
ARTICLE IV - COMMITTEES OF DIRECTORS
SECTION 4.1. Designation, Powers and Name ............................... 7
SECTION 4.2. Minutes .................................................... 8
SECTION 4.3. Compensation ............................................... 8
ARTICLE V - ADVISORY DIRECTORS
SECTION 5. Advisory Directors ......................................... 8
ARTICLE VI - NOTICE
SECTION 6.1. Methods of Giving Notice ................................... 9
SECTION 6.2. Written Waiver ............................................. 9
ARTICLE VII - OFFICERS
SECTION 7.1. Officers ................................................... 10
SECTION 7.2. Election and Term of Office ................................ 10
SECTION 7.3. Removal and Resignation .................................... 10
SECTION 7.4. Vacancies .................................................. 11
SECTION 7.5. Salaries ................................................... 11
SECTION 7.6. Chairman of the Board ...................................... 11
SECTION 7.7. Chairman and Chief Executive Officer ....................... 11
i
3
PAGE
----
SECTION 7.8. President .................................................. 12
SECTION 7.9. Vice President ............................................. 12
SECTION 7.10. Secretary .................................................. 13
SECTION 7.11. Treasurer .................................................. 13
SECTION 7.12. Assistant Secretaries and Assistant Treasurers ............. 14
SECTION 7.13. Assistant Vice Presidents .................................. 14
ARTICLE VIII - CERTIFICATES OF STOCK
SECTION 8.1. Issuance ................................................... 15
SECTION 8.2. Lost Certificates .......................................... 15
SECTION 8.3. Transfers .................................................. 16
SECTION 8.4. Registered Stockholders .................................... 16
ARTICLE IX - DIVIDENDS
SECTION 9.1. Declaration ................................................ 16
SECTION 9.2. Reserve .................................................... 16
ARTICLE X - INDEMNIFICATION
SECTION 10.1. Third Party Actions ........................................ 17
SECTION 10.2. Actions by or in the Right of the Corporation .............. 17
SECTION 10.3. Determination of Conduct ................................... 18
SECTION 10.4. Payment of Expenses in Advance ............................. 18
SECTION 10.5. Indemnity Not Exclusive .................................... 18
SECTION 10.6. Insurance .................................................. 18
SECTION 10.7. Constituent Corporation .................................... 19
ARTICLE XI - MISCELLANEOUS
SECTION 11.1. Seal ....................................................... 19
SECTION 11.2. Books ...................................................... 19
ARTICLE XII - AMENDMENT
SECTION 12. Amendment .................................................. 19
ii
4
AMENDED AND RESTATED
BY-LAWS
OF
A I M DISTRIBUTORS, INC.
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 Annual Meeting. The annual meeting of stockholders for the
election of directors shall be held at such place either within or without the
State of Delaware and 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 2.2 Voting List. The officer who has charge of the 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,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
5
SECTION 2.3. 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 President and shall be called
by the President or the Secretary at the request in writing of a majority of the
Board of Directors, or 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 for the purposes of
the proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. The President so calling,
or the directors or stockholders so requesting, any such meeting shall fix the
date and time of, and the place (either within or without the State of Delaware)
for, the meeting.
SECTION 2.4. 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 sixty days before the meeting.
SECTION 2.5. 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 all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. Notwithstanding the other provisions of the
Certificate of Incorporation or these by-laws, the holders of a majority of the
shares of stock present in person or represented by proxy, although not
constituting a quorum, 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 2.6. Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the stock having voted
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the statutes, of the Certificates 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. Every stockholder having
the right to vote shall
2
6
be entitled to vote in person, or by proxy appointed by an instrument in writing
subscribed by such 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 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 represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the statutes, 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.
Every stockholder having the right to vote shall be entitled to vote in person,
or by proxy appointed by instrument in writing subscribed by such 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 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 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 an event 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 of the same portion of the shares as
he is of the proxies representing such shares.
SECTION 2.7. Organization of Meetings.
(a) The Chairman of the Board of Directors, if any, shall preside at
each meeting of stockholders. In the absence of the Chairman of the Board, the
meeting shall be chaired by an officer of the corporation in accordance with the
following order: Vice Chairman of the Board (if any), Chairman and Chief
Executive Officer, President, Executive Vice President (if any), Senior Vice
President (if any) and Vice President. In the absence of all such officers, the
meeting shall be chaired by a person chosen by the vote of a majority in
interest of the stockholders present in person or represented by proxy and
entitled to vote thereat.
(b) The Board of Directors of the corporation shall be entitled to
make such rules and regulations for the conduct of meetings of stockholders as
it shall deem necessary, appropriate or convenient. Subject to such rules and
regulations
3
7
of the Board of Directors, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing: an agenda or order of business for the
meeting; rules and procedures for maintaining order at the meeting and the
safety of those present; limitations on participation in such meeting to
stockholders of record of the corporation and their duly authorized and
constituted proxies, and such other persons as the chairman shall permit;
restrictions on entry to the meeting after the time fixed for the commencement
thereof; limitations on the time allotted to questions or comments by
participants; and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot, unless and to the
extent the Board of Directors or the chairman of the meeting determines that
meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
SECTION 2.8. Consent of Stockholders. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation or any action which may be
taken at any annual or special meeting of such stockholders may be taken without
a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given by the Secretary of the corporation to those stockholders who
have not consented in writing.
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 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 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
4
8
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 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 or under the direction of its Board of Directors which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these by-laws directed or required to be exercised or done by the stockholders.
SECTION 3.2. Number, Election and Term. The number of directors
which shall constitute the whole Board of Directors shall be not less than
three. Such number of directors shall from time to time be fixed and
determined by resolution of the Board of 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
5
9
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 or
until his earlier resignation or removal. 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 Board of Directors caused by death, resignation,
retirement, disqualification or removal from office of any director, or
otherwise, or if any new directorship is created by an increase in the
authorized number of directors, a majority of the directors then in office,
though less than a quorum, or a sole remaining 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 or until his earlier resignation or removal. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. Any director may be removed either for or
without cause at any special meeting of stockholders duly called and held for
such purpose.
SECTION 3.4. Regular Meeting. A regular meeting of the Board of
Directors shall be held each year at the place of, and immediately following,
the annual meeting of stockholders, and no notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute the
meeting, provided a quorum shall be present. Other regular meetings of the
Board of Directors may provide by resolution, either within or without the
State of Delaware, without notice other 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 time and place of holding such meeting.
SECTION 3.6. Notice of Special Meeting. Written or telephonic 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. 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, except where a director attends
a 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
6
10
need be specified in the notice or waiver of notice at such meeting, except
that notice shall be given with respect to any matter where notice is required
by statute.
SECTION 3.7. Quorum and Participation. A majority 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 a majority of the directors
present at any meeting at which there is a quorum 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. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and such participation
shall constitute presence in person and attendance at such meeting. 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 be entitled to any
compensation for their services which is voted by the stockholders or the Board
of Directors, including a fixed sum and expenses of attendance, if any, which
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.
ARTICLE IV
COMMITTEES 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
7
11
consist of two or more of the directors of the corporation. Each 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 Executive Committee, if any, 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 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.
ARTICLE V
ADVISORY DIRECTORS
SECTION 5. Advisory Directors. In addition to the Officers of the
corporation, there may be one or more advisory directors who shall be appointed
by the Board of Directors. Advisory directors shall provide advice and
information to the Board of Directors and shall have such other advisory
responsibilities to the Board as shall be requested by the Board of Directors
from time to time, but shall not be members of the Board of Directors of the
corporation, shall not be held out to the public or to stockholders as directors
and shall have no powers to act on behalf of the corporation or to act in any
other capacity as directors. Advisory directors shall not be permitted to
initiate or second motions of, or to vote on actions considered by, the Board of
Directors. References to "directors" throughout these by-laws and other
corporate documents shall not include advisory directors, unless the term
"advisory director", specifically, is used; however, to the extent that
liability is asserted as arising from action taken by the board of Directors and
it is asserted that an advisory director participated in or contributed to the
action taken, the advisory director's liability shall be considered to be within
the scope of the indemnification provided in Article X for directors, officers,
employees and agents under the indemnification provisions of
8
12
Section 145 of the Delaware General Corporation Law. Advisory directors shall be
entitled to such compensation for their services as may be determined from time
to time by the Board of Directors, and may be reimbursed reasonable expenses
associated with the services rendered by them. No provision of these by-laws
shall be construed to preclude any advisory director from serving the
corporation in any other capacity and receiving compensation therefor.
ARTICLE VI
NOTICE
SECTION 6.1. 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 in person or by
telephone, by telex or telecopier, telegram or via overnight courier. 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 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 telex or telecopier, notice to a
director or member of a committee shall be deemed to be given upon transmittal;
if sent by telegram, 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 and if sent via overnight courier, notice to a director or
member of a committee shall be deemed to be given when delivered against a
receipt therefor.
SECTION 6.2. Written Waiver. Whenever any notice is required to be given
under the provisions of the statutes of the State of Delaware, the Certificate
of Incorporation or by 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.
9
13
ARTICLE VII
OFFICERS
SECTION 7.1. Officers. The officers of the corporation shall be a
Chairman of the Board, Vice Chairman of the Board (if such offices are created
by the Board), a Chairman and Chief Executive Officer, a President, one or more
Vice Presidents, any one or more of which may be designated Executive Vice
President, Senior Vice President or First Vice President, a Secretary,
Controller and a Treasurer. In the event that the Board of Directors creates
the office of Vice Chairman of the Board, the Board shall, by resolution,
define the duties of such office. The Board of Directors may appoint such other
officers and agents, including Chief Compliance Officer, Assistant Vice
Presidents, Assistant Secretaries and Assistance 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 Chairman and Secretary or 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 any
Vice Chairman of the Board shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and none
of the other officers need be a director, and none of the officers need be a
stockholder of the corporation.
SECTION 7.2. 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 elected 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 the Vice Chairman of
the Board, if such office is created by the Board.
SECTION 7.3. Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority 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
10
14
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 7.4. 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 7.5. 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 7.6. Chairman of the Board. The Chairman of the Board, if any,
shall preside at all meetings of the Board of Directors and of the stockholders
of the corporation. In the absence of the Chairman, such duties shall be
attended to by the Vice Chairman of the Board, if such office is created by the
Board, and as provided in Section 2.8(a) of these by-laws, with respect to
meetings of the stockholders. The Chairman, if any, shall formulate and submit
to the Board of Directors or the Executive Committee matters of general policy
of 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.
SECTION 7.7. Chairman and Chief Executive Officer. The Chairman and Chief
Executive Officer, 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 or Vice Chairman of the Board (if such offices are
created by the Board), the Chairman and Chief Executive Officer shall preside at
all meetings of the Board of Directors and of the stockholders. He may also
preside at any such meeting attended by the Chairman or Vice Chairman of the
Board, if he is so designated by such Chairman or, in the Chairman's absence, by
the Vice Chairman. He shall have general and active management of the business
of the corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The Chairman and 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 and Chief Executive Officer shall keep the Board of Directors fully
informed and shall consult them concerning the business of the corporation. He
may execute 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 where required or permitted
by law to be otherwise signed
11
15
and executed and except 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. He 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 he shall
perform all other duties normal incident to the office of Chairman and Chief
Executive Officer and such other duties as may be prescribed by the
stockholders or the Board of Directors from time to time.
SECTION 7.8. President. The President shall be the Chief Operating
Officer of the corporation and, shall have such other duties and perform such
other responsibilities as may be delegated to him by the Board of Directors or
the Chairman and the Chief Executive Officer, and, in the absence of the
Chairman and Chief Executive Officer, shall assume the responsibilities of that
office in addition to his other responsibilities. The President shall keep the
Chairman and Chief Executive Officer and the Board of Directors fully informed
and shall consult them concerning the operation of the corporation. He may
execute 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 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. In the absence
of the Chairman and Chief Executive officer, the President shall vote, or give
a proxy to any other officers of the corporation to vote, all shares of stock
of any other corporation standing in the name of the corporation and, in
general, he shall perform all other duties normally incident to the office of
President and such other duties as may be prescribed by the stockholders, the
Board of Directors or the Chairman and Chief Executive Officer from time to
time.
SECTION 7.9. Vice Presidents. (a) In the absence of the President, or
in the event of his inability or refusal to act, the Executive Vice President
(or in the event there shall be no Vice President designated Executive Vice
President, any Vice President designated by the Board) shall perform the
duties and exercise the powers of the President. Any Vice President may
execute 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 where required or
permitted by law to be otherwise signed and executed and except 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.
The Vice Presidents shall perform such other duties as from time to time may be
assigned to them by the
12
16
President, the Board of Directors or the Executive Committee. These
responsibilities do not apply to officers designated as First Vice President,
First Vice President - Regional or Vice President - Regional - Banking Division.
(b) First Vice President. Officers designated as First Vice President
shall perform the duties of a sales manager and shall act for the Company, but
shall not have the power to bind the Company.
(c) First Vice President - Regional. Officers designated as First Vice
President - Regional shall perform the duties of a wholesaler serving a regional
territory designated by the Company and shall act for the Company, but not have
the power to bind the Company.
(d) Vice President - Regional - Banking Division. Officers designated
as Vice President - Regional - Banking Division shall perform the duties of a
wholesaler for institutions designated by the Company and shall act for the
Company, but not shall not have the power to bind the Company.
SECTION 7.10. Secretary. The Secretary shall: (a) attend meetings of
the Board of Directors, committees of directors, and the stockholders and shall
keep the minutes of such meetings of the Board of Directors, committees of
directors and the stockholders; (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 Chairman and the Chief
Executive Officer, 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 Chairman
and Chief Executive Officer, the President, the Board of Directors or the
Executive Committee.
SECTION 7.11. Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation,
receive and give receipts for moneys due and payable to the corporation from any
source
13
17
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories; (b) 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 Chairman and Chief Executive Officer,
the President or the Executive Committee, a statement of financial condition of
the corporation in such detail as may be required; and (c) in general, perform
all the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Chairman and Chief Executive Officer,
the President, the Board of Directors or the Executive Committee. 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.
SECTION 7.12. Assistant Secretaries and Assistant Treasurers. 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 Chairman and Chief
Executive Officer, the President or an Executive Vice 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.
SECTION 7.13. Assistant Vice Presidents. The Assistant Vice Presidents
shall, in general, perform such duties as shall be assigned to them by the
President, any Vice President, the Board of directors or the Executive
Committee. The Assistant Vice Presidents shall, in the absence of a Vice
President, perform all functions and duties which such absent officer may
delegate, but such delegation shall not relieve the absent officer from the
responsibilities and liabilities of his office.
14
18
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 Chairman and Chief Executive Officer, the President or a Vice
President, and by the Secretary or an Assistant Secretary. Any or all of the
signatures on the certificate may be facsimiles. 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 without charge to each stockholder who so
request 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. 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 in accordance with Section 8.2 of the by-laws. 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 therefore 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
15
19
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 certificate alleged to have been lost,
stolen or destroyed or both.
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 older 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, if any.
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
conducive to the interest of the
16
20
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 his service as a member of the
Indemnified Class. For purposes of this Article X, the Indemnified Class shall
include any person who is or was director, (including an advisory 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, including
service with respect to employee benefit plans. The corporation shall indemnify
any member of the Indemnified Class against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such 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 pleas 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 good 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 member of the Indemnified Class 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
17
21
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 10.3. Determination of Conduct. The determination that
director, officer, employee or agent (including an advisory director), has or
has not 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 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 in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article X.
SECTION 10.5 Indemnity Not Exclusive. The indemnification provided
hereunder or granted pursuant to the other subsections of that Article shall not
be deemed exclusive of any other rights to which those seeking indemnification
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, and shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director (including any advisory director), officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 10.6 Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director (including any
advisory director), officer, employee or agent of the corporation, or is or was
servicing at the request of the corporation as a director (including any
advisory director), officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including
18
22
service to employee benefit plans, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article X of these by-laws.
SECTION 10.6. Constituent Corporation. For the purposes of this Article
X, reference to "the corporation" include all constitute corporations absorbed
in a consolidation or merger as well as the resulting or surviving corporation
so that any person who is or was a director (including an advisory director),
officer, employee or agent of such a constituent corporation or is or was
servicing at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article X with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Seal. The corporation 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. Amendment. These by-laws may be altered, amended or repealed
at any regular or special meeting of the Board of Directors without prior
notice.
19