Exhibit 3.5
BY-LAWS AS AMENDED THROUGH FEBRUARY 24, 1995
B Y - L A W S
OF
CALIFORNIA ENERGY COMPANY, INC.
(Formerly Phydeaux Corporation)
a Delaware corporation
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders of
California Energy Company, Inc. (hereinafter called the "Corporation") shall be
held at 10:00 a.m. on such day in the month of May in each year as shall be
selected by the Chairman of the Board, or, failing such selection, by the Board
of Directors. At the annual meeting, the stockholders shall elect by a
plurality vote a board of directors (hereinafter referred to as "Board"), and
transact such other business as may properly be brought before the meeting. If
the annual meeting shall not be held on the day hereinabove provided for, the
Board shall cause the meeting to be held as soon thereafter as convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders may be
called for any purpose or purposes at any time only by the Board, or the
President, upon not less than ten nor more than fifty days written notice.
Special meetings may not be called by the stockholders.
SECTION 3. NOTICE OF MEETINGS. Notice of the place, date and time of
the holding of each annual and special meeting of the stockholders and, in the
case of a special meeting, the purpose or purposes thereof, shall be given
personally or by mail in a postage prepaid envelope to each stockholder
entitled to vote at such meeting, not less than ten nor more than fifty days
before the date of such meeting, and, if mailed, it shall be directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, sign a waiver. Notice of an adjourned meeting need not be given if the
time and place to which the meeting shall be adjourned were announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. 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 meeting.
SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders may be held
at such place, within or without the State of Delaware, as the Board or the
officer calling the same shall specify in the notice of such meeting, or in a
duly executed waiver of notice thereof.
SECTION 5. QUORUM. (a) At all meetings of the stockholders, the
holders of a majority of the shares of stock of the Corporation issued and
outstanding and entitled to vote shall be present in person or by proxy to
constitute a quorum for the transaction of any business (except business
referred to in subsection (b) below), except when stockholders are required to
vote by class, in which event a majority of the issued and outstanding shares
of the appropriate class shall be present in person or by proxy, or except as
otherwise provided by statute. (b) At all meetings of the stockholders in which
the action to be taken requires the approval of sixty-six and two-thirds
percent (66 2/3%) of the issued and outstanding shares of stock entitled to
vote, the holders of sixty- six and two-thirds percent (66 2/3%) of the shares
of stock of the Corporation issued and outstanding and entitled to vote shall
be present in person or by proxy in order to constitute a quorum for the
transaction of any such business, except when stockholders are required to vote
by class, in which event, sixty-six and two-thirds percent (66 2/3%) of the
issued and outstanding shares of the appropriate class shall be present in
person or by proxy, or except as otherwise provided by statute. (c) In the
absence of a quorum, the holders of a majority of the shares of stock present
in person or by proxy and entitled to vote, or if no stockholder entitled to
vote is present, then any officer of the Corporation, may adjourn the meeting
from time to time. At any such adjourned meeting at which a quorum may be
present any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 6. ORGANIZATION. At each meeting of the stockholders the
Chairman of the Board, or in his absence or inability to act, the President, or
in the absence or inability to act of the Chairman of the Board or President, a
Vice President, or in the absence of all of the foregoing, any person chosen by
a majority of those stockholders present, shall act as chairman of the meeting.
The Secretary, or in his absence or inability to act, the Assistant Secretary
or any person appointed by the chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof.
SECTION 7. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 8. VOTING. Except as otherwise required by statute or by the
Certificate of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation on the date fixed by the Board as
the record date for the determination of the stockholders who shall be entitled
to notice of and to vote at such meeting; or at the close of business on the
day next preceding the day on which notice thereof shall be given, or if notice
is waived, at the close of business on the day next preceding the day on which
the meeting is held; or each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated
in the order of business for so delivering such proxies. No proxy shall be
valid after the expiration of three years from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except in those cases where an irrevocable
proxy is permitted by law. Except as otherwise provided by statute, these
By-Laws, or the Certificate of Incorporation, any corporate action to be taken
by vote of the stockholders shall be authorized by a majority of the total
votes, or when stockholders are required to vote by class by a majority of the
votes of the appropriate class, cast at a meeting of stockholders by the
holders of shares present in person or represented by proxy and entitled to
vote on such action. Unless required to be advisable, the vote on any question
need not be by written ballot. On a vote by written ballot, each ballot shall
be signed by the stockholder voting, or by his proxy, if there be such proxy,
and shall state the number of shares voted.
SECTION 9. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at that meeting, arranged in alphabetical order, and showing
the addresses of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
for or in connection with any corporate action, the meeting and vote of
stockholders can be dispensed with: (1) if all of the stockholders who would
have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken; or (2) unless the
Certificate of Incorporation provides otherwise, with the written consent of
the holders of not less than the minimum percentage of the total vote required
by statue for the proposed corporate action, and provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by the Board. The Board may exercise all such authority and
powers of the Corporation and do all such lawful acts and things as are not by
statute or the Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
SECTION 2. (A) NUMBER, QUALIFICATIONS, ELECTION AND TERM OF OFFICE.
The business and affairs of the Corporation shall be managed and controlled by
a Board of Directors consisting of twelve persons. At the 1989 Annual Meeting
of Stockholders, the directors were divided into three classes, as nearly equal
in number as possible, with the term of office of the first class to expire at
the 1990 Annual Meeting of Stockholders, the term of office of the second class
to expire at the 1991 Annual Meeting of Stockholders and the term of office of
the third class to expire at the 1992 Annual Meeting of Stockholders. At each
Annual Meeting of Stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding Annual
Meeting of Stockholders after their election. All directors shall be the age of
majority and need not be stockholders. Each director shall hold office until
the end of his term and until his successor shall have been duly elected and
qualified, or until his death, or until he shall have resigned, or have been
removed for cause, as hereinafter provided in these By-Laws or as otherwise
provided by statute or the Certificate of Incorporation.
(B) FILLING OF VACANCIES. Except as otherwise provided in Article II,
Section 11, any vacancies on the Board resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be
filled by a majority vote of the directors then in office, and directors so
chosen shall hold office for a term expiring at the Annual Meeting of
Stockholders at which the term of the class to which they have been elected
expires. No decrease in the number of directors constituting the Board shall
shorten the term of any incumbent director.
(C) REMOVAL. Any director, or the entire Board, may be removed from
office at any time, but only for cause and only by the affirmative vote of a
majority of the Board or the holders of at least sixty six and two thirds
percent (66 2/3%) of the voting power of all of the shares of the Corporation
entitled to vote for the election of directors. For the purposes of this
Paragraph (c), "cause" shall mean the willful and continuous failure of a
director substantially to perform such director's duties to the Corporation
(other than such failure resulting from incapacity due to physical or mental
illness) or the willful engaging by a director in gross misconduct materially
and demonstrably injurious to the Corporation.
SECTION 3. PLACE OF MEETINGS. Meetings of the Board may be held at
such place, within or without the State of Delaware, as the Board may from time
to time determine or as shall be specified in the notice or waiver of notice of
such meeting.
SECTION 4. FIRST MEETING. The Board shall meet for the purpose of
organization, the election of officers, and the transaction of other business,
as soon as practicable after each Annual Meeting of Stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Article II, Section 7.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board shall be
held at such time and place as the Board may from time to time determine. If
any day fixed for a regular meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting which would otherwise be held on
that day shall be held at the same hour on the next succeeding business day.
Notice of regular meetings of the Board need not be given except as otherwise
required by statute or these By-Laws.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board may be called
by two or more directors of the Corporation or by the Chairman of the Board or
the President.
SECTION 7. NOTICE OF MEETINGS. Notice of each special meeting of the
Board (and of each regular meeting for which notice shall be required) shall be
given by the Secretary as hereinafter provided in this Section 7, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be delivered to
each director either personally or by telephone, facsimile, telegraph, cable or
wireless, at least twenty-four hours before the time at which such meeting is
to be held or by first-class mail, postage pre-paid, addressed to him at his
residence, or usual place of business, at least three days before the day on
which such meeting is to be held. Notice of any such meeting need not be given
to any director who shall, either before or after the meeting, submit a signed
waiver of notice or who shall attend such meeting without protesting, prior to
or at its commencement, the lack of notice to him. Except as otherwise
specifically required by these By-Laws, a notice or waiver of notice of any
regular or special meeting need not state the purposes of such meeting.
SECTION 8. QUORUM AND MANNER OF ACTING. Three directors or one-third
of the entire Board, whichever is greater, shall be present in person at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting, and, except as otherwise expressly required by
statute or the Certificate of Incorporation, the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board. In the absence of a quorum at any meeting of the Board, a
majority of the directors present thereat, or if no director be present, the
Secretary may adjourn such meeting to another time and place, or such meeting,
unless it be the first meeting of the Board, need not be held. At any adjourned
meeting at which a quorum is present, any business may be transacted which
might have been transacted at the meeting as originally called. Except as
provided in Article III of these By-Laws, the directors shall act only as a
Board and the individual directors shall have no power as such.
SECTION 9. ORGANIZATION. At each meeting of the Board, the Chairman of
the Board (or, in his absence or inability to act, the President, or in his
absence or inability to act, another director chosen by a majority of the
directors present) shall act as chairman of the meeting and preside thereat.
The Secretary (or, in his absence or inability to act, any person appointed by
the chairman) shall act as secretary of the meeting and keep the minutes
thereof.
SECTION 10. RESIGNATION. Any director of the Corporation may resign at
any time by giving written notice of his resignation to the Board or Chairman
of the Board or the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its acceptance.
Unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 11. CERTAIN VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no directors
in office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office. When one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
action in the filling of other vacancies.
SECTION 12. COMPENSATION. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 13. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
SECTION 14. TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or by these By-Laws, members of the Board of
Directors may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
and such participation in a meeting shall constitute presence in person at the
meeting.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. EXECUTIVE AND OTHER COMMITTEES. The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The Executive Committee shall consist of the Chairman of the Board
and such of the other members of the Board as shall be appointed pursuant to
the immediately preceding sentence. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution creating the committee, shall have and may
exercise the powers of the Board 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; provided, however, that in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such minutes to the Board when required. All such
proceedings shall be subject to revision or alteration by the Board; provided,
however, that third parties shall not be prejudiced by such revision or
alteration.
SECTION 2. GENERAL. A majority of any committee may determine its
action and fix the time and place of its meetings, unless the Board shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Article II, Section 7. The Board shall
have any power at any time to fill vacancies in, to change the membership of,
or to dissolve any such committee. Nothing herein shall be deemed to prevent
the Board from appointing one or more committees consisting in whole or in part
of persons who are not directors of the Corporation; provided, however, that no
such committee shall have or may exercise any authority of the Board.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation
shall include the Chairman of the Board, the Vice- Chairman of the Board, the
President, one or more Vice-Presidents (any of whom may be designated as
Executive Vice-President), the Chief Financial Officer, the Treasurer, the
Controller and the Secretary. Any two or more offices may be held by the same
person. Such officers shall be elected from time to time by the Board or by the
Chairman of the Board, each to hold office until his successor shall have been
duly elected or appointed and shall have qualified, or until his death, or
until he shall have resigned, or have been removed, as hereinafter provided in
these By-Laws. The Board may from time to time elect, or the Chairman of the
Board may appoint, such other officers (including one or more Assistant
Vice-Presidents, Assistant Secretaries and Assistant Treasurers), and such
agents as may be necessary or desirable for the business of the Corporation.
Such other officers and agents shall have duties and shall hold their offices
for such terms as may be prescribed by the Board or by the appointing
authority.
SECTION 2. RESIGNATIONS. Any officer of the Corporation may resign at
any time by giving written notice of his resignation to the Board, the Chairman
of the Board, the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 3. REMOVAL. Any officer or agent of the Corporation may be
removed, either with or without cause, at any time, by the Chairman of the
Board or by the vote of the majority of the entire Board at any meeting of the
Board . Such removal shall be without prejudice to the contractual rights, if
any, of the person so removed.
SECTION 4. VACANCIES. A vacancy in any office, whether arising from
death, resignation, removal or any other cause, may be filled for the unexpired
portion of the term of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular elections or appointment to such
office.
SECTION 5. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall
be the Chief Executive Officer and shall have general and active supervision
and direction over the management of the Corporation's business and over the
President and Chief Operating Officer and all of the Corporation's other
officers, agents and employees. The Chairman of the Board shall, if present,
preside at each meeting of the stockholders and of the Board and shall be an ex
officio member of all committees of the Board. The Chairman of the Board shall
perform all duties incident to the office of Chairman of the Board and such
other duties as may from time to time be assigned to him by the Board.
SECTION 6. VICE-CHAIRMAN OF THE BOARD. The Vice-Chairman of the Board
shall be responsible for assisting the Chairman of the Board and shall perform
all such duties as may from time to time be assigned to him by the Board.
SECTION 7. THE PRESIDENT. Unless the President's duties are otherwise
modified by the Chairman of the Board, the President shall, in consultation
with and subject to the direction of the Chairman of the Board, have general
and active management of the operations and business of the Corporation and
general and active supervision and direction over the affairs of the
Corporation and over all of its other officers, agents and employees (except
the Chairman of the Board and Chief Executive Officer). The President shall be
the Corporation's Chief Operating Officer and shall see that all duties of
subordinate officers are properly performed and that their responsibilities are
properly discharged. In performing such duties, the President shall report
directly to the Chairman of the Board and shall consult with the Chairman of
the Board and be subject to the direction of the Chairman of the Board
regarding significant decisions and strategic options for the Company. At the
request of the Chairman of the Board, or in the case of his absence or
inability to act, the President shall perform the duties of the Chairman of the
Board and when so acting shall have all the powers of, and be subject to, all
the restrictions upon, the Chairman of the Board. He shall perform all duties
incident to the office of President and such other duties as from time to time
may be assigned to him by the Chairman of the Board and by these By-Laws.
SECTION 8. VICE PRESIDENTS. The Executive Vice-President and each
Vice-President shall have such powers and perform all such duties as from time
to time may be assigned to him by the Board or by the Chairman of the Board.
SECTION 9. THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall:
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and have control of all books of account of the
Corporation;
(c) cause all moneys and other valuables to be deposited to the credit of
the Corporation in such depositaries as may be designated by the Board;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever; (e) disburse the funds of the
Corporation and supervise the investment of its funds as ordered or authorized
by the Board, taking proper vouchers therefor;
(f) render the Chairman of the Board, the President and the Board,
whenever the Board or the Chairman of the Board may require, an account of the
financial condition of the Corporation; and
(g) in general, perform all the duties incident to the office of treasurer
and such other duties as from time to time may be assigned to him by the Board
or by the Chairman of the Board.
SECTION 10. THE SECRETARY. The secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the committees of the Board
and the stockholders;
(b) see that all notices are duly given in accordance with the provisions
of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix
and attest the seal to all stock certificates of the Corporation (unless the
seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal to all other documents to
be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept
and filed; and
(e) in general, perform all the duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him by the Board
or by the Chairman of the Board.
SECTION 11. OFFICERS' BONDS OR OTHER SECURITY. If required by the
Board, any officer of the Corporation shall give a bond or other security for
the faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
SECTION 12. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to
time by the Board; provided, however, that the Board may delegate to the
Chairman of the Board the power to fix the compensation of officers and agents
appointed by the Chairman of the Board. An officer of the Corporation shall not
be prevented from receiving compensation by reason of the fact that he is also
a director of the Corporation, but any such officer who shall also be a
director shall not have any vote in the determination of the amount of
compensation paid to him.
ARTICLE V
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he, or a person for 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, fiduciary or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding
was authorized by the Board.
SECTION 2. PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses incurred in defending any proceeding in advance of its final
disposition; provided, however, that the payment of expenses incurred by a
director or officer in his capacity as a director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be determined to be indemnified under this Article V or otherwise.
SECTION 3. CLAIMS. If a claim for indemnification or payment of
expenses under this Article V is not paid in full within ninety days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action, the Corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification or payment
of expenses under applicable law.
SECTION 4. NONEXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article V shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. CONTRACTS AND ARRANGEMENTS. The Corporation may enter into
contracts providing indemnification to the full extent authorized or permitted
by the Delaware General Corporation Law and may create a trust fund, grant a
security interest and/or use other means (including, without limitation,
letters of credit, surety bonds and other similar arrangements) to ensure the
payment of such amounts as may become necessary to effect indemnification
pursuant to such contracts or otherwise.
SECTION 6. AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article V shall not adversely affect any right or
protection of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF CONTRACTS. Except as otherwise required by
statute, the Certificate of Incorporation or these By-Laws, any contracts or
other instruments may be executed and delivered in the name and on behalf of
the Corporation by such officer or officers (including any assistant officer)
of the Corporation as the Board may from time to time direct. Such authority
may be general or confined to specific instances as the Board may determine.
Unless authorized by the Board or expressly permitted by these By-Laws, an
officer or agent or employee shall not have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it pecuniarily liable for any purpose or to any amount.
SECTION 2. LOANS. Unless the Board shall otherwise determine, either
(a) the President or the Chairman of the Board, or (b) any Vice President, the
Chief Financial Officer, the Treasurer or the Secretary, together with the
President or the Chairman of the Board, may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual, and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidence of indebtedness of the Corporation, but no officer or officers shall
mortgage, pledge, hypothecate or transfer any securities or other property of
the Corporation, except when authorized by the Board.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts, bills of exchange
or other orders for the payment of money out of the funds of the Corporation,
and all notes or other evidences of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation by such persons and in such
manner as shall from time to time be authorized by the Board.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may from time
to time designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time to time be
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the Corporation,
or in such manner as the Board may determine by resolution.
SECTION 5. GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time
to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these By-Laws, as
it may deem expedient.
SECTION 6. PROXIES IN RESPECT OF SECURITIES OF OTHER CORPORATIONS.
Unless otherwise provided by resolution adopted by the Board, Chairman of the
Board, the President or a Vice President may from time to time appoint an
attorney or attorneys or agent or agents, of the Corporation, in the name and
on behalf of the Corporation to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation, any of the stock or other securities of which may be held by the
Corporation, at meetings of the holders of the stock or other securities of
such other corporation, or to consent in writing, in the name of the
Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or
otherwise, all such written proxies or other instruments as he may deem
necessary or proper.
ARTICLE VII
SHARES, ETC.
SECTION 1. STOCK CERTIFICATES. Each holder of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of stock of the Corporation owned by
him. The certificates representing shares of stock shall be signed in the name
of the Corporation by the Chairman of the Board or the President or a
Vice-President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and sealed with the seal of the Corporation (which
seal may be a facsimile, engraved or printed); provided, however, that where
any such certificate is countersigned by a transfer agent other than the
Corporation or its employee, or is registered by a registrar other than the
Corporation or one of its employees, the signature of the officers of the
Corporation upon such certificates may be facsimiles, engraved or printed. In
case any officer who shall have signed or whose facsimile signature has been
placed upon such certificates shall have ceased to be such officer before such
certificates shall be issued, they may nevertheless be issued by the
Corporation with the same effect as if such officer were still in office at the
date of their issue.
SECTION 2. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. The books and
records of the Corporation may be kept at such places within or without the
State of Delaware, as the Board may from time to time determine. The stock
record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board.
SECTION 3. TRANSFERS OF SHARES. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly
executed stock transfer power and the payment of all taxes thereon. Except as
otherwise provided by law, the Corporation shall be entitled to recognize the
exclusive right of a person in whose name any share or shares stand on the
record of stockholders as the owner of such share or shares for all purposes,
including, without limitation, the rights to receive dividends or other
distributions, and to vote as such owner, and the Corporation may hold any such
stockholder of record liable for calls and assessments and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
any such share or shares on the part of any other person whether or not it
shall have express or other notice thereof. Whenever any transfers of shares
shall be made for collateral security and not absolutely, and both the
transferor and transferee request the Corporation to do so, such fact shall be
stated in the entry of the transfer.
SECTION 4. REGULATIONS. The Board may make such additional rules and
regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
SECTION 5. LOST, DESTROYED OR MUTILATED CERTIFICATES. The holder of
any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation of
such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen or destroyed, or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his
legal representative to give to the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties as the Board in
its absolute discretion shall determine, to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft, or
destruction of any such certificate, or the issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
SECTION 6. STOCKHOLDER'S RIGHT OF INSPECTION. Any person who shall
have been a stockholder of record of the Corporation for at least six months
immediately preceding his demand, or any person holding, or thereunto
authorized by the holders of, at least five percent of the outstanding shares
of stock of the Corporation, shall, in person or by attorney or other agent,
upon written demand under oath stating the purpose thereof, have the right
during the ordinary business hours to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be directed
to the Corporation at its registered office in this State or at its principal
place of business.
SECTION 7. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at the meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, 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, conversion or exchange of stock
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VIII
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
in the State of Delaware shall be at 1209 Orange Street, Wilmington, County of
New Castle, Delaware. The name of the resident agent in charge thereof shall be
the Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices other than said principal office at such place or places, either within
or without the Sate of Delaware, as the Board shall from time to time determine
or the business of the Corporation may require.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be January 1 to December 31
of each year.
ARTICLE X
SEAL
The Board shall provide a corporate seal, which shall be in the form
of two concentric circles and bear the name of the Corporation and the words
and figures "Corporate Seal 1971 Delaware."
ARTICLE XI
AMENDMENTS
The Board shall have the power to amend these By-Laws by a majority
vote. Notwithstanding anything contained in these By-Laws to the contrary, the
stockholders may amend these By-Laws, but only by an affirmative vote of
sixty-six and two-thirds percent (66 2/3%) of the voting power of all shares of
the Corporation entitled to vote, except when stockholders are required to vote
by class, in which event sixty-six and two-thirds percent (66 2/3%) of the
voting power of that class shall be required.