EXHIBIT 3.04
VALERO ENERGY CORPORATION
BYLAWS
(AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 15, 2004)
ARTICLE I.
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of stockholders shall be held at such date and
time and at such place as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, for the purposes of electing
directors and of transacting such other business as may properly come before the
meeting. At least ten days' notice shall be given to the stockholders of the
date, time and place so fixed. Any previously scheduled annual meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public notice given on or prior to the date previously scheduled for such annual
meeting of stockholders.
SECTION 2. Except as otherwise provided by law or by the Restated Certificate of
Incorporation of the Corporation, as from time to time amended (the "Restated
Certificate of Incorporation"), special meetings of the stockholders may be
called only by the Chief Executive Officer or by the Board of Directors pursuant
to a resolution adopted by a majority of the directors which the Corporation
would have if there were no vacancies. Upon written request of any person or
persons who have duly called a special meeting, it shall be the duty of the
Secretary to fix the date and time of the special meeting (which date shall be
not less than ten nor more than sixty days after receipt of the request) and to
give due notice thereof. If the Secretary shall neglect or refuse to fix the
date or time of the meeting or to give notice thereof, the person or persons
calling the meeting may do so. Any such notice shall include a statement of the
purpose or purposes for which the special meeting is called. Any previously
scheduled special meeting of the stockholders may be postponed by resolution of
the Board of Directors upon public notice given on or prior to the date
previously scheduled for such special meeting of stockholders.
SECTION 3. Every special meeting of the stockholders shall be held at such place
within or without the State of Delaware as the Board of Directors may designate,
or, in the absence of such designation, at the registered office of the
Corporation in the State of Delaware.
SECTION 4. Written notice of every meeting of the stockholders shall be given by
the Secretary to each stockholder of record entitled to vote at the meeting, by
placing such notice in the mail at least ten days, but not more than sixty days,
prior to the date fixed for the meeting addressed to each stockholder at his
address appearing on the books of the Corporation or supplied by him to the
Corporation for the purpose of notice.
SECTION 5. The Board of Directors may fix a date, which date shall not precede
the date upon which the resolution fixing such record date is adopted by the
Board of Directors, and which date shall be not less than ten nor more than
sixty days preceding the date of any meeting of stockholders, as a
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record date for the determination of stockholders entitled to notice of, or to
vote at, any such meeting. The Board of Directors shall not close the books of
the Corporation against transfers of shares during the whole or any part of such
period.
SECTION 6. The notice of every meeting of the stockholders may be accompanied by
a form of proxy approved by the Board of Directors in favor of such person or
persons as the Board of Directors may select.
SECTION 7. (a) Except as otherwise provided by law or by the Restated
Certificate of Incorporation or by these Bylaws, at any meeting of stockholders
the presence in person or by proxy of the holders of the outstanding shares of
stock of the Corporation entitled to vote thereat and having a majority of the
voting power with respect to a subject matter shall constitute a quorum for the
transaction of business as to that subject matter, and all questions with
respect to a subject matter, except the election of directors, shall be decided
by vote of the shares having a majority of the voting power so represented in
person or by proxy at the meeting and entitled to vote thereat. Election of
directors shall be determined by a plurality vote of the shares present in
person or by proxy and entitled to vote on the election of directors. The
stockholders present at any duly organized meeting may continue to do business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
(b) Every stockholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in writing subscribed by
such stockholder (which for purposes hereof may include a signature and form of
proxy pursuant to a facsimile or telegraphic form of proxy or any other
instrument acceptable to the duly appointed inspector or inspectors of such
election), 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, or by such other method as
may be permitted under the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (the "DGCL"), and approved by the
Board of Directors. 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 the powers of voting thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an 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 of the same portion of the shares as he is of the proxies representing
such shares.
(c) Any other corporation owning voting shares in the Corporation may
vote the same by its President or by proxy appointed by him, unless some other
person shall be appointed to vote such shares by resolution of the Board of
Directors of such shareholder corporation. A partnership holding shares of the
Corporation may vote such shares by any general partner or by proxy appointed by
any general partner.
(d) 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,
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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 8. Except as otherwise provided by law or by the Restated Certificate of
Incorporation, the presiding officer of any meeting or the holders of a majority
of the shares of stock of the Corporation entitled to vote at such meeting,
present in person or represented by proxy, whether a quorum is present, shall
have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting. At any such adjourned meeting at which a
quorum shall be present any action may be taken that could have been taken at
the meeting originally called; provided, that if the adjournment is for more
than thirty 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 adjourned meeting.
SECTION 9. (a) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (i) pursuant to
the Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of the notice provided for in this Section 9,
who is entitled to vote with respect to such matter at the meeting and who
complies with the notice procedures set forth in this Section 9. At any annual
meeting of stockholders, the presiding officer of such meeting may announce the
nominations and other business to be considered which are set forth in the
Corporation's notice of meeting and proxy statement and, by virtue thereof, such
nominations and other business so announced shall be properly before such
meeting and may be considered and voted upon by the stockholders of the
Corporation entitled to vote thereat without further requirement of nomination,
motion or second.
(b) In order for nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of Paragraph
(a) of this Section 9, the stockholder making such nominations or proposing such
other business must theretofore have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth (i) a
description of any arrangements or understandings that exist with respect to the
election or reelection of directors of the Corporation between such stockholder
or the beneficial owner, if any, on whose behalf such notice is given and any
other person (or, if no such arrangements or understandings exist, a statement
to such effect), together with, as to each person whom the stockholder proposes
to nominate at the meeting for election or reelection as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise
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required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to serving as a director if elected);
(ii) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (iii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (A) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner, and (B)
the class and number of shares of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of Paragraph (b) of
this Section 9 to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation at an annual meeting is
increased, whether by increase in the size of the Board of Directors, or by any
vacancy in the Board of Directors to be filled at such annual meeting, and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this Section 9 shall
also be considered timely, but only with respect to nominees for such vacant
positions and for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
SECTION 10. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 10, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 10. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by Paragraph (b) of Section 9 of
this Article I shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the 90th
day prior to such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
SECTION 11. (a) Only such persons who are nominated in accordance with the
procedures set forth in Sections 9 and 10 of this Article I shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in such Sections. The presiding officer of the meeting
shall
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have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in these Bylaws, and if any
proposed nomination or business is not in compliance with these Bylaws, to
declare that such defective proposal shall be disregarded.
(b) For purposes of Sections 9 and 10 of this Article I, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Services, Associated Press, Reuters or comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the provisions of Sections 9, 10 and 11 of this
Article I, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in these Bylaws shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any class or series of Preferred Stock of the Corporation
to elect directors under specified circumstances.
SECTION 12. In accordance with Article VI of the Restated Certificate of
Incorporation, the stockholders shall not be entitled to consent to corporate
action in writing without a meeting.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Except as otherwise fixed
pursuant to the provisions of the Restated Certificate of Incorporation relating
to the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
directors under specified circumstances, the number of directors shall be as
fixed in such manner as may be determined by the vote of not less than a
majority of the directors then in office, but shall not be less than five nor
more than thirteen directors. The Board of Directors, excluding however,
directors elected pursuant to the provisions of the Restated Certificate of
Incorporation relating to the rights of holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, shall be divided into
three classes as provided in the Restated Certificate of Incorporation. The
directors shall be elected as provided in the Restated Certificate of
Incorporation at the annual meeting of stockholders, except as provided in
Section 2 of this Article II. Each director shall hold office for the full term
to which he shall have been elected and until his successor is duly elected and
shall qualify, or until his earlier death, resignation or removal. A director
need not be a resident of the State of Delaware or a stockholder of the
Corporation.
SECTION 2. Any vacancy in the Board of Directors, including vacancies resulting
from an increase in the number of directors, shall be filled by a majority of
the remaining members of the Board, though less than a quorum. When newly
created directorships are filled by the Board of Directors, such additional
directors shall not be assigned to a director class until the next annual
meeting of stockholders. Subject to the foregoing, directors elected to fill a
vacancy shall hold office for a term expiring at the annual meeting at which the
term of the class to which they shall have been elected expires.
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SECTION 3. Any director may resign at any time by written notice to the
Corporation. Any such resignation shall take effect at the date of 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 4. Regular meetings of the Board of Directors shall be held at such
place or places within or without the State of Delaware, at such hour and on
such day as may be fixed by resolution of the Board of Directors, without
further notice of such meetings. The time or place of holding regular meetings
of the Board of Directors may be changed by the Chairman of the Board or the
Chief Executive Officer by giving written notice thereof as provided in Section
6 of this Article II.
SECTION 5. Special meetings of the Board of Directors shall be held, whenever
called by the Chairman of the Board or the Chief Executive Officer, by a
majority of the Board of Directors or by resolution adopted by the Board of
Directors, at such place or places within or without the State of Delaware as
may be stated in the notice of the meeting.
SECTION 6. Written notice of the time and place of all special meetings of the
Board of Directors, and written notice of any change in the time or place of
holding the regular meetings of the Board of Directors, shall be given to each
director either personally or by mail, telephone, express delivery service,
facsimile, telex or similar means of communication at least one day before the
date of the meeting; provided, however, that notice of any meeting need not be
given to any director if waived by him in writing, or if he shall be present at
such meeting.
SECTION 7. A majority of the directors in office shall constitute a quorum of
the Board of Directors for the transaction of business; but a lesser number may
adjourn from day to day until a quorum is present. The directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum,
provided however, that such remaining directors constitute not less than
one-third of the total number of directors. Except as otherwise provided by law
or in these Bylaws, all questions shall be decided by the vote of a majority of
the directors present. Directors may participate in any meeting of the
directors, and members of any committee of directors may participate in any
meeting of such committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in such
meeting can hear each other, and such participation shall constitute presence in
person at any such meeting.
SECTION 8. Any action which may be taken at a meeting of the directors or
members of any committee of directors may be taken without a meeting if a
consent in writing setting forth the action so taken shall be signed by all of
the directors or members of such committee of directors, as the case may be, and
shall be filed with the Secretary.
SECTION 9. Directors shall be entitled to such compensation for their services
as may be approved by the Board of Directors, including, if so approved by
resolution of the Board of Directors, a fixed sum and expenses of attendance, if
any, 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 Bylaws shall
be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
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SECTION 10. Subject to the rights of the holders of any series of Preferred
Stock with respect to such series of Preferred Stock, any director, or the
entire Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least 60 percent of
the voting power of all of the then-outstanding shares of voting stock, voting
together as a single class.
ARTICLE III.
COMMITTEES OF DIRECTORS
SECTION 1. The Board of Directors may, by resolution adopted by a majority of
the whole Board, designate one or more committees of the Board, including, as
they shall so determine, an Executive Committee, an Audit Committee and a
Compensation Committee. Any committee of the Board designated by the Board of
Directors shall consist of one or more of the directors of the Corporation.
SECTION 2. The Executive Committee, during intervals between meetings of the
Board of Directors and while the Board is not in session, shall have and
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including (except as
otherwise limited by law, the Restated Certificate of Incorporation or these
Bylaws) the power and authority to appoint officers and agents of the
Corporation, to approve guarantees, leases, contracts, notes, bonds and other
evidences of indebtedness, to declare dividends, to authorize the issuance of
stock, to adopt certificates of ownership and merger pursuant to the provisions
of the DGCL, and to approve commitments for expenditures subject to such
expenditure approval authority limits as the Board of Directors may from time to
time establish. In the absence of the appointment of a Nominating Committee, the
Executive Committee may also review possible director candidates, including
director recommendations properly presented by stockholders, and recommend to
the full Board of Directors individuals suited for election as directors. The
Executive Committee may recommend the establishment of committees of the Board
of Directors and review and recommend annually to the full Board of Directors
the slate of director nominees for election by the Corporation's stockholders.
The Executive Committee may also review the qualifications of the Corporation's
commercial and investment bankers, review relations with the Corporation's
creditors, security holders and investment bankers and recommend changes to the
capital structure of the Corporation.
SECTION 3. The Audit Committee may make recommendations to the Board of
Directors concerning particular persons or firms to be employed by this
Corporation as its independent auditors and consult with the persons or firms so
chosen with regard to the plan of audit; review, in consultation with the
independent auditors, their audit report or proposed audit report and the
accompanying management letter, if any; consult with the independent auditors
periodically and out of the presence of management, if deemed appropriate, with
regard to the adequacy of internal reporting and controls, including those
concerning hedging and trading activities; consult with internal auditors, as
appropriate, and review and approve the annual internal audit program and
internal audit reports; and review and recommend approval of annual financial
statements and other financial statements, as required, of the Corporation. The
Audit Committee may review and make recommendations to the Board of Directors
concerning the Corporation's conflict of interest policy. The Audit Committee
may also review the Corporation's compliance with applicable environmental laws
and regulations; review and approve internal environmental assessment and
compliance programs, as it shall deem appropriate; and consult with such
officers and employees of the Corporation, and such independent persons or
firms, as it shall deem appropriate, with respect to environmental matters.
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SECTION 4. The Compensation Committee may review the Corporation's compensation
policies and programs, review and adopt compensation and employee benefit plans
for the employees of the Corporation, administer the Corporation's stock bonus
plans, stock option plans, non-employee director stock plans and other executive
and director compensation arrangements, approve amendments to and
interpretations of all such plans for employees, executive officers or
directors, and have authority (which authority may be delegated to the Chief
Executive Officer or such other executive officers as the Compensation Committee
may determine) to appoint and remove, determine the term of office of members
of, and determine the size of any committee from time to time administering
employee benefit plans. The Compensation Committee shall make recommendations to
the Board of Directors with respect to directors' compensation and shall approve
compensation and management succession arrangements for the executive officers
of the Corporation, provided however, that compensation and management
succession arrangements for the Chief Executive Officer and the President shall
be approved by the Board of Directors upon recommendation of the Compensation
Committee. The Compensation Committee may also delegate to the Chief Executive
Officer or such other executive officer as the Compensation Committee may
determine the authority to approve and cause to be placed into effect amendments
to employee benefit plans deemed necessary or appropriate in order to comply
with any applicable federal or state statute or regulation or otherwise deemed
advisable by the Chief Executive Officer or such other executive officer as the
Compensation Committee may determine, provided however, that each such amendment
or related series of amendments so approved shall involve costs to the
Corporation not exceeding the expenditure approval authority of the Chief
Executive Officer as established from time to time by the Board, and provided
further, that neither the Chief Executive Officer nor any such other executive
officer shall have the authority to approve any such amendment if such amendment
would (a) materially increase the benefits accruing to participants under such
plan, (b) materially modify the requirements for eligibility for participation
in such plan, (c) increase the securities issuable under such plan or (d)
require stockholder approval under any provision of the Restated Certificate of
Incorporation, these Bylaws, or any federal or state statute or regulation or
the rules of the New York Stock Exchange.
SECTION 5. Any other committee of the Board designated by the Board of Directors
shall have and may, except as otherwise limited by statute, the Restated
Certificate of Incorporation or these Bylaws, exercise such powers and authority
of the Board of Directors in the management of the business of the Corporation
as may be provided in the resolution adopted by the Board of Directors
designating such committee of the Board of Directors. Each committee of the
Board of Directors may authorize the seal of the Corporation to be affixed to
all papers that may require it. The Board of Directors may designate one or more
directors as alternate members of any committee of the Board of Directors 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 such member or members 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 6. Each committee of directors shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
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SECTION 7. Members of special or standing committees of the Board shall be
entitled to receive such compensation for serving on such committees as the
Board of Directors shall determine.
ARTICLE IV.
CHAIRMAN OF THE BOARD
The Chairman of the Board of Directors, if there be one, shall be elected from
among the directors, shall have the power to preside at all meetings of the
Board of Directors and to sign (together with the Secretary or an Assistant
Secretary) certificates for shares of the Corporation, and shall have such other
powers and shall be subject to such other duties as the Board of Directors may
from time to time prescribe.
ARTICLE V.
OFFICERS
SECTION 1. The officers of the Corporation shall consist of a Chief Executive
Officer, a President, one or more Vice Presidents, any one or more of which may
be designated an Executive Vice President or a Senior Vice President, a Chief
Financial Officer, a Secretary, a Treasurer and a Controller. 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 of Directors.
Any two or more offices may be held by the same person.
SECTION 2. The officers of the Corporation shall be elected annually by the
Board of Directors at a regular meeting of the Board of Directors held
immediately prior to, or immediately following, 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.
SECTION 3. Any officer or agent elected or appointed by the Board of Directors
or the Executive Committee may be removed without cause by 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 4. 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 5. 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. The Chief Executive Officer, the President and each Vice President
shall have authority to sign any deeds, bonds, mortgages, guarantees,
indemnities, contracts, checks, notes, drafts or other instruments authorized to
be executed by the Board of Directors or any duly authorized committee thereof,
or if so authorized in any approval authority policy or procedure adopted by or
at the
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direction of the Board of Directors, or if not inconsistent with the Restated
Certificate of Incorporation, these Bylaws, any action of the Board of Directors
or any duly authorized committee thereof or any such policy or procedure, and,
together with the Secretary or any other officer of the Corporation thereunto
authorized by the Board or the Executive Committee, may sign any certificates
for shares of the Corporation which the Board of Directors or the Executive
Committee has authorized to be issued, except in cases where the signing and
execution of any such instrument or certificate has been expressly delegated by
these Bylaws or by the Board or the Executive Committee to some other officer or
agent of the Corporation or shall be required by law to be otherwise executed.
SECTION 7. The Chief Executive Officer shall serve as general manager of the
business and affairs of the Corporation and shall report directly to the Board
of Directors, with all other officers, officials, employees and agents reporting
directly or indirectly to him. The Chief Executive Officer shall preside at all
meetings of the stockholders. In the absence of the Chairman of the Board, or if
there is no Chairman of the Board, the Chief Executive Officer shall also
preside at all meetings of the Board of Directors unless the Board of Directors
shall have chosen another presiding officer. The Chief Executive Officer shall
formulate and submit to the Board of Directors or the Executive Committee
matters of general policy for the Corporation; he shall keep the Board of
Directors and Executive Committee fully informed and shall consult with them
concerning the business of the Corporation. Subject to the supervision, approval
and review of his actions by the Board of Directors, the Chief Executive Officer
shall have authority to cause the employment or appointment of and the discharge
of assistant officers, employees and agents of the Corporation, and to fix their
compensation; and to suspend for cause, pending final action by the Board of
Directors or Executive Committee, any officer subordinate to the Chief Executive
Officer. The Chief Executive Officer shall vote, or give a proxy to any other
officer of the Corporation to vote, all shares of stock of any other corporation
(or any partnership or other interest in any partnership or other enterprise)
standing in the name of the Corporation, and in general he shall perform all
other duties normally incident to such office and such other duties as may be
prescribed from time to time by the Board of Directors or the Executive
Committee. The Chief Executive Officer shall designate the person or persons who
shall exercise his powers and perform his duties in his absence or disability
and the absence or disability of the President.
SECTION 8. The President shall be the chief operating officer of the Corporation
and, subject to the control of the Board of Directors and Chief Executive
Officer, shall in general supervise and control the business operations of the
Corporation. In the absence of the Chairman of the Board and the Chief Executive
Officer, the President shall preside at all meetings of the Board of Directors
and, in the absence of the Chief Executive Officer, he shall preside at all
meetings of the stockholders of the Corporation, unless in either case the Board
of Directors shall have chosen another presiding officer. He shall keep the
Chief Executive Officer fully informed and shall consult with him concerning the
business of the Corporation. He shall perform all other duties normally incident
to such office and such other duties as may be prescribed from time to time by
the Board of Directors, the Executive Committee or the Chief Executive Officer.
In the absence or disability of the Chief Executive Officer, the President shall
exercise the powers and perform the duties of the Chief Executive Officer,
unless such authority shall have been designated by the Board of Directors,
Executive Committee or Chief Executive Officer to another person.
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SECTION 9. The Vice Presidents shall perform all duties normally incident to
such office and such other duties as may be prescribed from time to time by the
Board of Directors, the Executive Committee, the Chief Executive Officer or the
President.
SECTION 10. The Chief Executive Officer shall appoint a general counsel or chief
legal officer of the Corporation, who shall have charge of all matters of legal
importance to the Corporation and shall keep the Board of Directors, the
Executive Committee, the Chief Executive Officer and the President advised of
the character and progress of all legal proceedings and claims by and against
the Corporation, or in which it is interested by reason of its ownership of or
affiliation with other corporations or entities; when requested by the Board of
Directors, the Executive Committee, the Chief Executive Officer or the
President, render his opinion upon any subjects of interest to the Corporation
which may be referred to him; monitor activities of the Corporation to assure
that the Corporation complies with the laws applicable to the Corporation and in
general perform all other duties normally incident to such office and such other
duties as may be prescribed from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer or the President.
SECTION 11. The Chief Financial Officer shall be the principal financial officer
of the Corporation and, unless the Board of Directors shall so designate another
officer, shall also be the principal accounting officer of the Corporation. The
Chief Financial Officer shall in general supervise and control the keeping and
maintaining of proper and correct accounts of the Corporation's assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus, shares,
properties and business transactions, as well as all funds, securities,
evidences of indebtedness and other valuable documents of the Corporation. He
shall keep the Chief Executive Officer fully informed and shall consult with him
concerning financial matters affecting the Corporation and shall render such
reports to the Board of Directors, the Executive Committee, the Chief Executive
Officer or the President as they may request. He shall perform all other duties
normally incident to such office and such other duties as may be prescribed from
time to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer or the President.
SECTION 12. The Secretary shall attend, and record and have custody of, the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; see that all notices are duly given in accordance with
the provisions of these Bylaws and as required by law; be custodian of the
corporate records and of the seal of the Corporation; sign with the Chairman of
the Board, the President or a Vice President, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the
Board of Directors or the Executive Committee; and in general, perform all
duties normally incident to such office and such other duties as may be
prescribed from time to time by the Board of Directors, the Executive Committee,
the Chief Executive Officer or the President.
SECTION 13. The Treasurer shall have charge and custody of and be responsible
for all funds of the Corporation; and in general, perform all the duties
incident to such office and such other duties as may be prescribed from time to
time by the Board of Directors, the Executive Committee, the Chief Executive
Officer or the President.
SECTION 14. The Controller shall have charge and supervision of and be
responsible for the accounting function of the Corporation and, in general
perform all duties incident to such office and such other duties as may be
prescribed from time to time by the Board of Directors, the Executive Committee,
Chief Executive Officer or the President.
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ARTICLE VI.
SEAL
The seal of the Corporation shall be in such form as the Board of Directors
shall prescribe.
ARTICLE VII.
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by certificates of
stock, signed by the Chairman of the Board, the President or such Vice President
or other officer as may be designated by the Board of Directors or the Executive
Committee, and countersigned by the Secretary or an Assistant Secretary; and if
such certificates of stock are signed or countersigned by a transfer agent other
than the Corporation, or by a registrar other than the Corporation, such
signature of the Chairman of the Board, President, Vice President, or other
officer, and such countersignature of the Secretary or an Assistant Secretary,
or any of them, may be executed in facsimile, engraved or printed. In case any
officer who has signed or whose facsimile signature has been placed upon any
share certificate shall have ceased to be such officer because of death,
resignation or otherwise before the certificate is issued, it may be issued by
the Corporation with the same effect as if the officer had not ceased to be such
at the date of its issuance. Said certificate of stock shall be in such form as
the Board of Directors may from time to time prescribe.
ARTICLE VIII.
INDEMNIFICATION
SECTION 1. Each director or officer of the Corporation who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he, or a person of whom he is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, non-profit or charitable
organization, or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL (but, in the case of any amendment thereto, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his heirs, executors and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his capacity as a director or officer (but not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service with respect to an
employee benefit plan) in advance of the final disposition of a proceeding shall
be made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so
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advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under the applicable provisions of the DGCL. The
Corporation may, by action of its Board of Directors or as required pursuant to
the Restated Certificate of Incorporation, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
SECTION 2. The indemnification and advancement of expenses provided herein shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of stockholders, vote of disinterested directors, insurance arrangement or
otherwise, both as to action in his official capacity and as to action in
another capacity or holding such office.
ARTICLE IX.
AMENDMENTS
These Bylaws may be altered, amended, added to or repealed by the Board of
Directors, acting by a majority vote of the members of the Board of Directors in
office, or by the stockholders having voting power with respect thereto,
provided that in the case of amendments by stockholders, the affirmative vote of
the holders of at least 80 percent of the voting power of the then outstanding
voting stock, voting together as a single class, shall be required to alter,
amend or repeal any provision of the Bylaws.
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