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ITEM 14(a)3, EXHIBIT 3.2
Adopted: September 22, 1971
Amended: May 31, 1973
November 20, 1974
November 1, 1975
September 29, 1976
September 29, 1979
August 27, 1980
November 22, 1988
April 14, 1989
June 28, 1989
January 2, 1992
September 29, 1992
February 9, 1994
February 23, 1995
July 26, 1995
September 27, 1995
June 6, 1996
BY-LAWS
OF
TESORO PETROLEUM CORPORATION
(As Amended June 6, 1996)
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BY-LAWS
OF
TESORO PETROLEUM CORPORATION
ARTICLE I
Meeting of Stockholders
Section 1.1 Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
properly may come before such meeting shall be held on such date, and at such
time and place within or without the State of Delaware, as may be designated by
the Board of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders
for any proper purpose or purposes may be called at any time by the Board of
Directors, the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, or any Vice President, to be held on such date, and at such
time and place within or without the State of Delaware, as the Board of
Directors, the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, or a Vice President, whichever has called the meeting,
shall direct. A special meeting of the stockholders shall be called by the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, or any Vice President whenever stockholders holding shares
representing a majority of the votes of the shares of the Corporation then
issued and outstanding and entitled to vote on matters to be submitted to
stockholders of the Corporation shall make application therefor in writing.
Any such written request shall state a proper purpose or purposes of the
meeting and shall be delivered to the Chairman of the Board of Directors, the
Vice Chairman of the Board of Directors, or any Vice President. A special
meeting of the stockholders shall be called by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, or any Vice President,
for the purpose of electing one additional member to the Board of Directors in
the event there should occur three tie votes of the Board of Directors with
respect to any matter or series of matters at any meeting or series of meetings
within a three consecutive month period.
Section 1.3 Notice of Meeting. Written notice, signed by the Chairman
of the Board of Directors, the Vice Chairman of the Board of Directors, any
Vice President, the Secretary or an Assistant Secretary, of every meeting of
stockholders (other than an adjourned meeting unless otherwise required by
statute) stating the purpose or purposes for which the meeting is called, and
the date and time when, and the place where, it is to be held shall be either
delivered personally or mailed to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the meeting, except
as otherwise provided by statute. If mailed, such notice shall be
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directed to a stockholder at his address as it shall appear on the stock books
of the Corporation, unless he shall have filed with the Secretary a written
request that notices intended for him be mailed to some other address, in which
case it shall be mailed to the address designated in such request, and shall be
given when deposited in the United States mail, postage prepaid.
Section 1.4 Quorum. The presence at any meeting, in person or by
proxy, of the holders of record of shares representing a majority of the votes
of the shares then issued and outstanding and entitled to vote shall be
necessary and sufficient to constitute a quorum for the transaction of
business, except where otherwise provided by statute.
Section 1.5 Adjournments. In the absence of a quorum, a majority of
the votes of the stockholders entitled to vote, present in person or by proxy,
or, if no stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside at or act as secretary of such meeting, may adjourn
the meeting from time to time until a quorum shall be present.
Section 1.6 Voting. Directors shall be chosen by a plurality of the
votes cast at the election, and, except where otherwise provided by statute, or
the Certificate of Incorporation, all other questions shall be determined by a
majority of the votes cast on such question.
Section 1.7 Proxies. Any stockholders entitled to vote may vote by
proxy, provided that the instrument authorizing such proxy to act shall have
been executed in writing (which shall include telegraphing or cabling) by the
stockholder himself or by his duly authorized attorney.
Section 1.8 Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on
any other matter that may properly come before a meeting of stockholders. If
no such appointment shall be made, or if any of the judges so appointed shall
fail to attend, or refuse or be unable to serve, then such appointment may be
made by the presiding officers at the meeting.
Section 1.9 Consent of Stockholders in Lieu of Meeting.
(a) Any action required to be taken at any annual or special
meeting of the stockholders, or any action which may be taken at any
annual or special meeting of the 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 and shall be delivered to the Corporation by
delivery to
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its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of
the book in which proceedings or meetings of stockholders are
recorded. Delivery shall be made by hand or by certified or
registered mail, return receipt requested.
(b) Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless,
within sixty days of the date the earliest dated consent is delivered
to the Corporation, a written consent or consents signed by a
sufficient number of holders to take action are delivered to the
Corporation in the manner prescribed in paragraph (c) of this Section.
(c) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which
date shall not be more than fifteen days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix
a record date. The Board of Directors shall promptly, but in all
events within ten days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record
date has been fixed by the Board of Directors within ten days after
the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in accordance
with paragraphs (a) and (b) of this Section. If no record date has
been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking such
prior action.
(d) Within three business days after receipt of the earliest
dated consent delivered to the Corporation in the manner provided in
this Section, the Corporation shall retain nationally recognized
independent inspectors of elections for the purpose of performing a
ministerial review of the validity of consents and any revocations
thereof. The Corporation shall promptly deliver all consents and
revocations of consents received by it to the inspectors of election.
The cost of retaining inspectors of election shall be borne by the
Corporation.
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(e) At any time that stockholders soliciting consents in
writing to corporate action have a good faith belief that the
requisite number of valid and unrevoked consents to authorize or take
the action specified has been received by them, the consents shall be
delivered by the soliciting stockholders to the Corporation's
registered office in the State of Delaware or principal place of
business or to the Secretary of the Corporation, together with a
certificate stating their belief that the requisite number of valid
and unrevoked consents has been received as of a specific date, which
date shall be identified in the certificate. In the event that
delivery is made to the Corporation's registered office in the State
of Delaware, such delivery shall be made by hand or by certified or
registered mail, return receipt requested.
(f) As promptly as practicable after the consents and
revocations are received by them, the inspectors of election shall
issue a preliminary report to the Corporation stating: (i) the number
of shares represented by valid and unrevoked consents; (ii) the number
of shares represented by invalid consents; (iii) the number of shares
represented by invalid revocations; and (iv) the number of shares
entitled to submit consents as of the record date. Unless the
Corporation and the soliciting stockholders agree to a shorter or
longer period, the Corporation and the soliciting stockholders shall
have five days to review the consents and revocations and to advise
the inspectors and the opposing party in writing as to whether they
intend to challenge the preliminary report. If no timely written
notice of an intention to challenge the preliminary report is
received, the inspectors shall certify the preliminary report (as
corrected or modified by virtue of the detection by the inspectors of
clerical errors) as their final report and deliver it to the
Corporation. If the Corporation or the soliciting stockholders give
timely written notice of an intention to challenge the preliminary
report, a challenge session shall be scheduled by the inspectors as
promptly as practicable. A transcript of the challenge session shall
be recorded by a certified court reporter. Following completion of
the challenge session, the inspectors shall issue as promptly as
practicable their final report and deliver it to the Corporation. A
copy of the final report shall be included in the book in which the
proceedings of meetings of stockholders are recorded.
(g) The Corporation shall give prompt notice to the
stockholders of the results of any consent solicitation or the taking
of corporate action without a meeting by less than unanimous written
consent.
(h) This Section shall in no way impair or diminish the right
of any stockholder or director, or any officer whose title to office
is contested, to contest the validity of any consent or revocation
thereof, or to take any action with respect thereto.
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Section 1.10 Nominations for Director and Proposal of Business.
(a) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of the stockholders (a)
pursuant to the Corporation's notice of meeting, (b) by or at the
direction of the Board of Directors or (c) by any stockholder who was
a stockholder of record at the time of giving of notice provided for
in this Section, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section.
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to this Section,
such stockholder must have given timely notice thereof in writing to
the Secretary, and such business must be a proper subject for
stockholder action under the Delaware General Corporation Law. To be
timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not less than sixty
days nor more than ninety days 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 advanced by more than thirty
days or delayed by more than sixty days from such anniversary date,
notice by the stockholder to be timely must be so delivered not
earlier than the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the sixtieth day
prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to
be disclosed in solicitation of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected), (b)
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 (c) as to the stockholder giving the notice and such
beneficial owner, if any, on whose behalf the nomination or proposal
is made (i) the name and address of such stockholder, as they appear
on the Corporation's books, and of such beneficial owner, and (ii) 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 this Section to the contrary,
in the event that the number of directors to be elected to the Board
of Directors is increased
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and there is no public announcement specifying the size of the
increased Board of Directors made by the Corporation at least seventy
days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth day following the day on
which such public announcement is first made by the Corporation.
(d) 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) by any stockholder of the Corporation who is
a stockholder of record at the time of the Corporation's giving of
notice provided for in this Section, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in
this Section. Nominations by stockholders of persons for election to
the Board of Directors may be made at such a special meeting of
stockholders if the stockholder's notice required by this Section
shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the ninetieth day prior to such
special meeting and not later than the close of business on the later
of the sixtieth day prior to such special meeting or the tenth 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.
(e) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible for election as
directors at a meeting of stockholders. Only such business shall be
conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section. The Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set
forth in this Section and, if any proposed nominations or business is
not in compliance with this Section, to declare that such defective
proposal shall be disregarded.
(f) For purposes of this Section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service.
(g) Notwithstanding the foregoing provisions of this Section,
a stockholder shall also comply with all applicable requirements of
the Exchange
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Act and the rules and regulations thereunder with respect to the
matters set forth in this Section. Nothing in this Section shall be
deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
ARTICLE II
Board of Directors
Section 2.1 Number, Election and Term of Office. The number of
directors which shall constitute the whole Board of Directors shall be fixed
from time to time by resolution of the Board of Directors but shall not be less
than three. The directors shall be elected at the annual meeting of
stockholders, except as provided in Section 2.2, and each director elected at
an annual meeting of stockholders, and directors elected in the interim to fill
vacancies and newly created directorships shall hold office until the next
annual meeting of stockholders or until their successors are duly elected and
qualified or until their earlier resignation or removal. A director need not
be a stockholder.
Section 2.2 Vacancies and Additional Directorships. Unless otherwise
provided in the Certificate of Incorporation or these By-laws: (1) vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote
as a single class may be filled by a majority of the directors then in office,
although less than a quorum; (2) whenever the holders of any class or classes
of stock or series thereof are entitled to elect one or more directors by the
Certificate of Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office.
Section 2.3 The Vice Chairman of the Board of Directors. The Board
of Directors may appoint a Vice Chairman of the Board of Directors who shall be
a director but need not be a stockholder of the Corporation. The Vice Chairman
shall not, by reason of said title, be or be deemed to be an officer of the
Corporation. In the absence of the Chairman of the Board of Directors, the
Vice Chairman shall preside at all meetings of the stockholders and of the
Board of Directors. The Vice Chairman may sign, with an officer thereunto duly
authorized (the signatures to which may be facsimile signatures) and may sign
and execute in the name of the Corporation other instruments which the Board of
Directors has authorized to be executed. From time to time, but only in the
absence or at the direction of the Chairman of the Board of Directors, the Vice
Chairman shall report to the Board of Directors all matters which to his
knowledge the interests of the Corporation may require be brought to their
attention. The Vice Chairman shall perform such other duties as are given to
him by
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these By-laws or as from time to time may be assigned to him by the Board of
Directors.
Section 2.4 Meetings. A meeting of the Board of Directors shall be
held for organization, for the election of officers and for the transaction of
such other business as may properly come before the meeting, within thirty days
after each annual election of directors.
The Board of Directors by resolution may provide for the holding of
regular meetings and may fix the times and places at which such meetings shall
be held. Notice of regular meetings shall not be required to be given,
provided that whenever the time or place of regular meetings shall be fixed or
changed, notice of such action shall be mailed promptly to each director who
shall not have been present at the meeting at which such action was taken,
addressed to him at his residence or usual place of business.
Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, any Vice President or any two directors. Except as otherwise
required by statute, notice of each special meeting shall be mailed to each
director, addressed to him at his residence or usual place of business, or
shall be sent to him at such place by telegram, radio or cable, or telephoned
or delivered to him personally, not later than two days before the day on which
the meeting is to be held. Such notice shall state the time and place of such
meeting, but unless otherwise required by statute, the Certificate of
Incorporation of the Corporation or these By-laws need not state the purposes
thereof.
Notice of any meeting need not be given to any director who shall
attend such meeting in person or who shall waive notice thereof, before or
after such meeting, in writing or by telegram, radio or cable.
Section 2.5 Quorum. One-third of the total number of members of the
Board of Directors as constituted from time to time, but not less than two,
shall be necessary and sufficient to constitute a quorum for the transaction of
business. In the absence of a quorum, a majority of those present at the time
and place of any meeting may adjourn the meeting from time to time until a
quorum shall be present, and the meeting may be held as adjourned without
further notice of waiver. A majority of those present at any meeting at which
a quorum is present may decide any question brought before such meeting, except
as otherwise provided by law, the Certificate of Incorporation or these
By-laws.
Section 2.6 Resignation of Directors. Any director may resign at any
time by giving written notice of such resignation to the Board of Directors,
the Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, any Vice President or the Secretary. Any such resignation shall
take effect at the time specified therein, or, if no time be specified, upon
receipt thereof by the Board of Directors or
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one of the above-named officers; and, unless specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 2.7 Removal of Directors. At any special meeting of the
stockholders, duly called for the purpose of removing a director or directors
as provided in these By-laws, any director or directors may, by the affirmative
vote of the holders of shares representing a majority of the votes of all the
shares of stock outstanding and entitled to vote for the election of directors,
be removed from office, either for or without cause. Such vacancy shall be
filled by the directors as provided in Section 2.2.
Section 2.8 Compensation of Directors. Directors shall receive such
reasonable compensation for their service as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 2.9 Indemnification. The Corporation shall indemnify to the
full extent authorized or permitted by the laws of the State of Delaware any
person who is made, or threatened to be made, a party to an action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he, his testator or intestate is or was a director, officer or
employee of the Corporation or serves or served any other enterprise at the
request of the Corporation.
ARTICLE III
Committees of the Board
Section 3.1 Designation, Power, Alternate Members and Term of Office.
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees including an Executive Committee, each
committee to consist of one or more of the directors of the Corporation. Any
such committee, to the extent provided in such resolution or in these By-laws,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement
of merger of consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation or,
unless the resolution of the Board of Directors establishing any such
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committee shall expressly so provide or these By-laws shall expressly so
provide, declaring a dividend on the Corporation's capital stock or authorizing
the issuance of the Corporation's capital stock. The Board may designate one
or more directors as alternate members of any committee who, in the order
specified by the Board, may replace any absent or disqualified member at any
meeting of the committee. If at a meeting of any committee one or more of the
members thereof should be absent or disqualified, and if either the Board of
Directors has not so designated any alternate member or members, or the number
of absent or disqualified members exceeds the number of alternate members who
are present at such meeting, then the member or members of such committee
(including alternates) present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
director to act at the meeting in the place of any such absent or disqualified
member. The term of office of the members of each committee shall be as fixed
from time to time by the Board, subject to these By-laws; provided, however,
that any committee member who ceases to be a member of the Board shall ipso
facto cease to be a committee member. Each committee shall appoint a
secretary, who may be the Secretary of the Corporation or an Assistant
Secretary thereof.
Section 3.2 Meetings, Notices and Records. Each committee may provide
for the holding of regular meetings, with or without notice, and may fix the
time and place at which such meetings shall be held. Special meetings of each
committee shall be held upon call by or at the direction of its chairman or, if
there be no chairman, by or at the direction of any two of its members, at the
time and place specified in the respective notices or waivers of notice
thereof. Notice of each special meeting of a committee shall be mailed to each
member of such committee, addressed to him at his residence or usual place of
business, at least two days before the day on which the meeting is to be held,
or shall be sent by telegram, radio or cable, addressed to him at such place,
or telephoned or delivered to him personally not later than the day before the
day on which the meeting is to be held. Notice of any meeting of a committee
need not be given to any member thereof who shall attend the meeting in person
or who shall waive notice thereof, before or after such meeting, in writing or
by telegram, radio or cable. Notice of any adjourned meeting need not be
given. Each committee shall keep a record of its proceedings.
Section 3.3 Quorum and Manner of Acting. At each meeting of any
committee the presence of one-third but not less than two of its members then
in office shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the members present at
any meeting at which a quorum is present shall be the act of such committee.
In the absence of a quorum, a majority of the members present at the time and
place of any meeting may adjourn the meeting from time to time until a quorum
shall be present. Subject to the foregoing and other provisions of these
By-laws and except as otherwise determined by the Board of Directors, each
committee may make rules for the conduct of its business. Any
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determination made in writing and signed by all the members of such committee
shall be as effective as if made by such committee at a meeting.
Section 3.4 Resignations. Any member of a committee may resign at any
time by giving written notice of such resignation to the Board of Directors,
the Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, any Vice President or the Secretary. Any such resignation shall
take effect at the time specified therein, or if no time be specified, upon
receipt thereof by the Board of Directors or one of the above-named officers;
and, unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3.5 Removal. Any member of any committee may be removed at
any time by the Board of Directors with or without cause.
Section 3.6 Vacancies. If any vacancy shall occur in any committee by
reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by a resolution passed by a majority of the
whole Board of Directors.
Section 3.7 Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1 Officers. The officers of the Corporation shall be a
Chairman of the Board of Directors who shall also be the President and Chief
Executive Officer, one or more Vice Presidents (which may include Executive
Vice Presidents, Group Vice Presidents, Senior Vice Presidents and other
categories of Vice Presidents), a Secretary, a Treasurer, and such other
officers as may be appointed in accordance with the provisions of Section 4.3.
Section 4.2 Election, Term of Office and Qualifications. Each officer
(except such officers as may be appointed in accordance with the provisions of
Section 4.3) shall be elected by the Board of Directors. Each such officer
(whether elected at the first meeting of the Board of Directors after the
annual meeting of stockholders or to fill a vacancy otherwise) shall hold his
office until the first meeting of the Board of
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Directors after the next annual meeting of stockholders and until his successor
shall have been elected, or until his death, or until he shall have resigned in
the manner provided in Section 4.4 or shall have been removed in the manner
provided in Section 4.5.
Section 4.3 Subordinate Officers and Agents. The Board of Directors
from time to time may appoint other officers or agents (including one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers), to hold office for such period, have such authority and
perform such duties as are provided in these By-laws or as may be provided in
the resolutions appointing them. The Board of Directors may delegate to any
officer or agent the power to appoint any such subordinate officers or agents
and to prescribe their respective terms of office, authorities and duties.
Section 4.4 Resignations. Any officer may resign at any time by
giving written notice of such resignation to the Board of Directors, the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, any Vice President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if no time be specified, upon
receipt thereof by the Board of Directors or one of the above-named officers;
and, unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.5 Removal. Any officer specifically designated in Section
4.1 may be removed at any time, either with or without cause, at any meeting of
the Board of Directors by the vote of a majority of all the Directors then in
office. Any officer or agent appointed in accordance with the provisions of
Section 4.3 may be removed, either with or without cause, by the Board of
Directors at any meeting, by the vote of a majority of the Directors present at
such meeting, or by any superior officer or agent upon whom such power of
removal shall have been conferred by the Board of Directors.
Section 4.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these By-laws for
regular election or appointment to such office.
Section 4.7 The Chairman of the Board of Directors. The Chairman of
the Board of Directors shall be the President and Chief Executive Officer of
the Corporation. Subject to the direction of the Board of Directors, he shall
have general charge of the business affairs and property of the Corporation.
He shall see that all orders and resolutions of the Board of Directors are
carried into effect. If present, he shall preside at all meetings of
stockholders. He may sign, with any other officer thereunto duly authorized,
certificates of stock of the Corporation the issuance of which shall have been
duly authorized (the signatures to which may be facsimile signatures), and may
sign and execute in the name of the Corporation, deeds, mortgages, bonds,
contracts,
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agreements or other instruments duly authorized by the Board of Directors
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by statute to some other officer or
agent. From time to time he shall report to the Board of Directors all matters
within his knowledge which the interests of the Corporation may require to be
brought to their attention. He shall perform such other duties as are given to
him by these By-laws or as from time to time may be assigned to him by the
Board of Directors.
Section 4.8 Executive Vice President. In the absence of the Chairman
of the Board of Directors and the Vice Chairman of the Board of Directors, the
Executive Vice President shall preside at all meetings of stockholders. The
Executive Vice President may sign, with any other officer thereunto duly
authorized, certificates of stock of the Corporation the issuance of which
shall have been duly authorized (the signatures to which may be facsimile
signatures), and may sign and execute in the name of the Corporation, deeds,
mortgages, bonds, contracts, agreements or other instruments duly authorized by
the Board of Directors except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by statute to some
other officer or agent. He shall perform such other duties as are given to him
by these By-laws or as from time to time may be assigned to him by the Board of
Directors or the Chairman of the Board of Directors.
Section 4.9 The Vice Presidents. In the event of the absence or
disability of the Chairman of the Board of Directors, any Vice President
designated by the Chairman of the Board of Directors (or in the absence of such
designation, the Vice President designated by the Board of Directors) shall
perform all the duties of the Chairman of the Board of Directors and, when so
acting, shall have all the powers of and be subject to all restrictions upon
the Chairman of the Board of Directors. Any Vice President may also sign, with
any other officer thereunto duly authorized, certificates of stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature), and may sign and execute in
the name of the Corporation, deeds, mortgages, bonds and other instruments duly
authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
statute to some other officer or agent. Each Vice President shall perform such
other duties as are given to him by these By-laws or as from time to time may
be assigned to him by the Board of Directors or the Chairman of the Board of
Directors.
Section 4.10 The Secretary. The Secretary shall
(a) record all the proceedings of the meetings of the
stockholders, the Board of Directors, and any committees in a book or
books to be kept for that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these By-laws and as required by statute;
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(c) whenever any committee shall be appointed in pursuance of
a resolution of the Board of Directors, furnish the chairman of such
committee with a copy of such resolution;
(d) be custodian of the records and of the seal of the
Corporation, and cause such seal to be affixed to all certificates
representing stock of the Corporation prior to the issuance thereof
and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized;
(e) see that the lists, books, reports, statements,
certificates and other documents and records required by statute are
properly kept and filed;
(f) have charge of the stock and transfer books of the
Corporation, and exhibit such stock book at all reasonable times to
such persons as are entitled by statute to have access thereto;
(g) sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Secretary and such other duties as are given to him by these By-laws
or as from time to time may be assigned to him by the Board of
Directors, the Chairman of the Board of Directors or the Executive
Vice President.
Section 4.11 Assistant Secretaries. At the request of the Secretary
or in his absence or disability, the Assistant Secretary designated by him (or
in the absence of such designation, the Assistant Secretary designated by the
Board of Directors, the Chairman of the Board of Directors, or the Executive
Vice President) shall perform all the duties of the Secretary and, when so
acting, shall have all the powers of and be subject to all restrictions upon
the Secretary. The Assistant Secretaries shall perform such other duties as
from time to time may be assigned to them by the Board of Directors, the
Chairman of the Board of Directors, the Executive Vice President or the
Secretary.
Section 4.12 The Treasurer. The Treasurer shall
(a) have charge of and supervision over and be responsible for
the funds, securities, receipts and disbursements of the Corporation;
(b) cause the monies and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositaries as shall be selected
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in accordance with Section 5.3 of these By-laws or to be otherwise
dealt with in such manner as the Board of Directors may direct;
(c) cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositaries of the Corporation,
and cause to be taken and preserved proper vouchers for all monies
disbursed;
(d) render to the Board of Directors or the Chairman of the
Board of Directors, whenever requested, a statement of the financial
condition of the Corporation and of all his transactions as Treasurer;
(e) cause to be kept at the Corporation's principal office
correct books of account of all its business and transactions and such
duplicate books of account as he shall determine and upon application
cause such books or duplicates thereof to be exhibited to any
director;
(f) be empowered, from time to time, to require from the
officers or agents of the Corporation reports or statements giving
such information as he may desire with respect to any and all
financial transactions of the Corporation;
(g) sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Treasurer and such other duties as are given to him by these By-laws
or as from time to time may be assigned to him by the Board of
Directors, the Chairman of the Board of Directors or the Executive
Vice President.
Section 4.13 Assistant Treasurers. At the request of the Treasurer or
in his absence or disability, the Assistant Treasurer designated by him (or in
the absence of such designation, the Assistant Treasurer designated by the
Board of Directors, the Chairman of the Board of Directors or the Executive
Vice President) shall perform all the duties of the Treasurer and, when so
acting, shall have all the powers of and be subject to all restrictions upon
the Treasurer. The Assistant Treasurers shall perform such other duties as
from time to time may be assigned to them by the Board of Directors, the
Chairman of the Board of Directors, the Executive Vice President or the
Treasurer.
Section 4.14 Salaries. The salaries of the officers of the
Corporation shall be fixed from time to time by the Board of Directors, except
that the Board of Directors may delegate to any person the power to fix the
salaries or other compensation of any officers or agents appointed in
accordance with the provisions of Section 4.3. No
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officer shall be prevented from receiving such salary by reason of the fact
that he is also a director of the Corporation.
Section 4.15 Surety Bonds. If the Board of Directors shall so
require, any officer or agent of the Corporation shall execute to the
Corporation a bond in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned upon the faithful discharge of his duties,
including responsibilities for negligence and for the accounting for all
property, funds or securities of the Corporation which may come into his hands.
ARTICLE V
Execution of Instruments and
Deposit of Corporate Funds
Section 5.1 Execution of Instruments Generally. The Chairman of the
Board of Directors, the Vice Chairman of the Board of Directors, any Vice
President, the Secretary or the Treasurer, subject to the approval of the Board
of Directors, may enter into any contract or execute and deliver any instrument
in the name and on behalf of the Corporation. The Board of Directors may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authorization may be general or confined to specific
instances.
Section 5.2 Borrowing. No loans or advances shall be obtained or
contracted for, by or on behalf of the Corporation and no negotiable paper
shall be issued in its name, unless and except as authorized by the Board of
Directors. Such authorization may be general or confined to specific
instances. Any officer or agent of the Corporation thereunto so authorized may
obtain loans and advances for the Corporation, and for such loans and advances
may make, execute and deliver promissory notes, bonds, or other evidences of
indebtedness of the Corporation. Any officer or agent of the Corporation
thereunto so authorized may pledge, hypothecate or transfer as security for the
payment of any and all loans, advances, indebtedness and liabilities of the
Corporation, any and all stocks, bonds, other securities and other personal
property at any time held by the Corporation, and to that end may endorse,
assign and deliver the same and so every act and thing necessary or proper in
connection therewith.
Section 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositaries as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by
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the Board of Directors. Endorsements for deposit to the credit of the
Corporation in any of its duly authorized depositaries shall be made in such
manner as the Board of Directors from time to time may determine.
Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, and all notes or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers or agent or agents of the Corporation, and in such manner, as from
time to time shall be determined by the Board of Directors.
Section 5.5 Proxies. Proxies to vote with respect to shares of stock
of other corporations owned by or standing in the name of the Corporation may
be executed and delivered from time to time on behalf of the Corporation by the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors
or a Vice President or by any other person or persons thereunto authorized by
the Board of Directors.
ARTICLE VI
Record Dates
Section 6.1. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversation or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall be not more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Only those stockholders of record on the date so fixed shall be entitled to any
of the foregoing rights, notwithstanding the transfer of any such stock on the
books of the Corporation after any such record date fixed by the Board of
Directors.
ARTICLE VII
Corporate Seal
Section 7.1. The corporate seal shall be circular in form and shall
bear the name of the Corporation and words and figures denoting its
organization under the
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laws of the State of Delaware and the year thereof and otherwise shall be in
such form as shall be approved from time to time by the Board of Directors.
ARTICLE VIII
Fiscal Year
Section 8.1. The fiscal year of the Corporation shall begin on the
1st day of January in each year and shall end on the 31st day of December in
the same year.
ARTICLE IX
Amendments
Section 9.1. Except as otherwise provided in Article VII of the
Certificate of Incorporation, all By-laws of the Corporation may be amended,
altered or repealed, and new By-laws may be made, by the affirmative vote of
the holders of record of shares representing a majority of the votes of the
outstanding shares of stock of the Corporation entitled to vote cast at any
annual or special meeting, or by the affirmative vote of a majority of the
Directors cast at any regular or special meeting at which a quorum is present.
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