Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
KERR-McGEE CORPORATION
ARTICLE I
OFFICES
Section 1. The principal place of business of Kerr-McGee Corporation
("Corporation") shall be in Oklahoma City, Oklahoma.
Section 2. The Corporation may also have offices at such other places as
the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
SEAL
Section 1. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization, and the words "Corporate Seal,
Delaware". The Corporate Seal may be used by causing it or a facsimile thereof
to be impressed, affixed or reproduced.
Section 2. The corporate seal shall be retained under the custody and
control of the Secretary or Assistant Secretary except as and to the extent the
use of same by others may be expressly authorized by the Board of Directors.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. All meetings of the stockholders for any purpose may be held at
such place as shall be stated in the notice of the meeting.
Section 2. An annual meeting of the stockholders shall be held within one
hundred fifty (150) days after the end of each fiscal year as the Board of
Directors may set for a particular year's annual meeting, at which meeting they
shall elect by a plurality vote by ballot a board of directors and transact such
other business as may properly be brought before the meeting.
Section 3. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
be requisite and shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by law, by the
Certificate of Incorporation or by these ByLaws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall be
present. At such adjourned meeting at which the requisite amount of voting stock
shall be represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 4. At any meeting of the stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy appointed in a
manner prescribed by the Company and permitted by applicable law.
Section 5. Except as may otherwise be provided by law or in the Certificate
of Incorporation of the Corporation, or any amendment thereto, each stockholder
shall have one vote for each share of the stock having voting power, registered
in his name on the books of the Corporation, and except where the transfer books
of the Corporation shall have been closed or a date shall have been fixed as a
record date for the determination of its stockholders entitled to vote, no share
of stock shall be voted on at any election for directors which shall have been
transferred on the books of the Corporation within twenty days preceding such
election of directors, or on any other matter respecting which stockholders are
entitled to vote if such stock has been so transferred within twenty days prior
to action on such matter.
Section 6. Except as otherwise provided by law, notice of the annual
meeting of stockholders shall be given at least ten days prior to the meeting,
and in accordance with Article XXI hereof, to each stockholder so entitled to
vote thereat.
Section 7. A complete list of the stockholders so entitled to vote at the
ensuing election of directors arranged in alphabetical order, with the address
of each, and the number of voting shares registered in the name of each, shall
be filed in the office where the election is to be held, at least ten days
before every election, and shall at all times during the ordinary business hours
and during the whole time of said election be open to the examination of any
stockholder.
Section 8. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, shall be called only by the
Chief Executive Officer of the Corporation or by the Secretary at the direction
of the Board of Directors pursuant to a resolution approved by the Board of
Directors.
Section 9. Business transacted at all special meetings shall be confined to
the objects stated in the notice of the meeting.
Section 10. Written or electronic notice of a special meeting of
stockholders, stating the time and place and object thereof, shall be given at
least ten days before such meeting, and in accordance with Article XXI hereof,
to each stockholder entitled to vote thereat.
Section 11.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting delivered pursuant to Article III, Section 6 of
these ByLaws, (b) by or at the direction of the Chief Executive Officer or the
Board of Directors or (c) by any stockholder of the Corporation who is entitled
to vote at the meeting, who complied with the notice procedures set forth in
subparagraphs (2) and (3) of this paragraph (A) of this ByLaw and who was a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this ByLaw, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation, and, in the case of business other than
nominations, such other business must be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered in writing to the
Secretary at the principal executive offices of the Corporation not less than
seventy 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 twenty days, or delayed by
more than seventy 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
seventieth 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 re-election as a director all information
relating to such person that is required to be disclosed in solicitations 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 the 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.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this ByLaw to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least eighty
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this ByLaw 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.
(B) Special Meetings of Stockholders. 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 pursuant to Article III,
Section 10 of these ByLaws. 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 Chief Executive Officer or the Board of Directors or (b) by
any stockholder of the Corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this ByLaw and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation. Nominations of 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 as required by paragraph (A)(2) of this ByLaw 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 seventieth 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.
(C) General.
(1) Only persons who are nominated in accordance with the procedures set
the forth in this ByLaw shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
ByLaw. Except as otherwise provided by law, the Certificate of Incorporation or
these ByLaws, 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 ByLaw and,
if any proposed nomination or business is not in compliance with this ByLaw, to
declare that such defective nomination shall be disregarded or that such
proposed business shall not be transacted.
(2) For purposes of this ByLaw, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) For purposes of this ByLaw, no adjournment nor notice of adjournment of
any meeting shall be deemed to constitute a new notice of such meeting for
purposes of this Section 11, and in order for any notification required to be
delivered by a stockholder pursuant to this Section 11 to be timely, such
notification must be delivered within the periods set forth above with respect
to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this ByLaw, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
ByLaw. Nothing in this ByLaw 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 IV
DIRECTORS
Section 1. The property and business of the Corporation shall be managed by
its Board of Directors, the members of which need not be stockholders.
Section 2. The Board of Directors of the Corporation shall consist of such
number of directors, not less than three, as shall from time to time be fixed
exclusively by resolution of the Board of Directors. The directors shall be
divided into three classes in the manner set forth in the Certificate of
Incorporation of the Corporation, each class to be elected for the term set
forth therein. Directors shall (except as hereinafter provided for the filling
of vacancies and newly created directorships) be elected by the holders of a
plurality of the voting power present in person or represented by proxy and
entitled to vote.
Section 3. Each director shall be elected to serve until his successor
shall be elected and shall qualify. A person who has passed his 64th birthday
and who has not theretofore served as a director of the Corporation shall not be
eligible to be elected a director, whether pursuant to this Section 3 or to
Section 6, of this Article. A person who has passed his 73rd birthday shall not
in any event be eligible for reelection for continued service as a director of
the Corporation, irrespective of prior service as a director of the Corporation.
A person who has retired as an employee shall not in any event be eligible for
election or reelection to the Board or be qualified for continued service as a
Director of the Corporation irrespective of prior service as a Director of the
Corporation. For purposes of this section, any service as a director of Westport
Resources Corporation prior to the Corporation's acquisition of Westport
Resources Corporation shall be deemed to be prior service as a director of the
Corporation. Any failure of any director to meet the qualifications for service
as a director set forth in these ByLaws, or otherwise under law, shall result in
the termination of the term of such director.
Section 4. The directors may hold their meetings, have one or more offices
and keep the books of the Corporation in the City of Oklahoma City, Oklahoma, or
at such other places as they may from time to time determine and designate.
Section 3. The members of the Board of Directors or any committee thereof
may participate in a meeting of such Board or committee, as the case may be, by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute presence
in person at such a meeting.
Section 4. Vacancies in the Board of Directors, however occasioned, and
newly created directorships resulting from any increase in the authorized number
of directors, may be filled only by a majority of the remaining directors then
in office though less than a quorum and the accepting directors so chosen shall
hold office for a term as set forth in the Certificate of Incorporation of the
Corporation and until a successor or successors have been duly elected and
qualified unless sooner displaced.
Section 5. Notwithstanding the foregoing, whenever the holders of any one
or more series of Preferred Stock issued by the Corporation shall have the
right, voting separately by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, removal, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Amended and Restated Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to Article SEVENTH of the Amended and Restated Certificate of
Incorporation unless expressly provided by such terms. The number of directors
that may be elected by the holders of any such series of Preferred Stock shall
be in addition to the number fixed by or pursuant to the ByLaws. Except as
otherwise expressly provided in the terms of such series, the number of
directors that may be so elected by the holders of any such series of stock
shall be elected for terms expiring at the next annual meeting of stockholders
and without regard to the classification of the members of the Board of
Directors as set forth in Section 2 hereof, and vacancies among directors so
elected by the separate vote of the holders of any such series of Preferred
Stock shall be filled by the affirmative vote of a majority of the remaining
directors elected by such series, or, if there are no such remaining directors,
by the holders of such series in the same manner in which such series initially
elected a director.
Section 6. Subject to provisions of pertinent law and the Certificate of
Incorporation, dividends, if any, declared respecting any class of shares of the
Corporation's capital stock may be declared by the Board of Directors at any
regular meeting thereof and despite any provision of the ByLaws to the contrary
at any special meeting thereof, whether or not consideration or action
respecting dividends be stated in the notice thereof; and dividends may be paid
in cash or, if the declaration thereof so provides, in property, including
shares of the Corporation. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repair or maintaining
any property of the Corporation, or for such other purpose as the Board of
Directors shall deem conducive to the interest of the Corporation, and the Board
of Directors may abolish any reserve in the manner in which it was created.
Section 7. The Board of Directors shall have power to close the stock
transfer books of the Corporation for a period not exceeding sixty days
preceding the date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect or for any other
purpose; provided, however, that in lieu of closing the stock transfer books, as
aforesaid, the Board of Directors may fix in advance a date not exceeding sixty
days preceding the date of any meeting of stockholders or the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date for such other purpose, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting or entitled
to receive payment of any such dividend, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange of
capital stock, or for such other purpose, and in such case only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any adjournment,
thereof, or to receive such allotment of rights, or to exercise such rights or
to be considered as stockholders for such other purpose, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
Section 8. In addition to the powers and authorities by these ByLaws
expressly conferred upon it, the Board of Directors may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these ByLaws directed or required
to be exercised or done by the stockholders.
Section 9. Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if prior to such action a
written consent thereto is signed by all members of the Board and such written
consent is filed with the minutes of proceedings of the Board.
ARTICLE V
COMMITTEES
Section 1. The Board of Directors may appoint an Executive Committee of two
or more directors, which shall consist of the Chief Executive Officer and such
other director or directors as shall be designated by resolution adopted by the
Board of Directors. Such Committee 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 while the Board of Directors is not in session except
that it shall not have power or authority in reference to (1) amending the
Certificate of Incorporation, (2) adopting an agreement of merger or
consolidation under Section 251 or 252 of the Delaware General Corporation Law,
(3) recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (4) recommending to
the stockholders dissolution of the Corporation or revocation of a dissolution,
or (5) amending the ByLaws; nor shall it have any power or authority which the
Board of Directors has by resolution withheld from it. Vacancies in the
membership of the Committee shall be filled by the Board of Directors at a
regular meeting or a special meeting called for that purpose.
Section 2. The Committees of the Board shall be governed by Subsection (2)
of Section 141(c) of the Delaware General Corporation Law which provides for the
designation of committees of the Corporation's Board of Directors and the
permissible functions of such committees.
Section 3. The Board of Directors by resolution or resolutions adopted by a
majority of the Board of Directors may designate other committees, each
committee to consist of two or more directors of the Corporation and to exercise
such powers and duties and to have such name as may be designated by resolution
adopted by the Board of Directors.
Section 4. Each committee of the Board of Directors may meet at such stated
times and/or upon call with such notice as said committee may by resolution
provide from time to time. At all meetings of each committee, a majority of
members thereof 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 there is a quorum shall be the act of the committee.
Section 5. Committees of the Board of Directors shall keep regular minutes
of their proceedings. Any action required or permitted to be taken at any
meeting of the Committee may be taken without a meeting if prior to such action
a written consent thereto is signed by all members of the Committee and such
written consent is filed with the minutes of proceedings of the Committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
Section 1. Directors may, pursuant to resolution of the Board of Directors,
be paid a stated sum with respect to each regular and special meeting of the
Board of Directors and be allowed their expenses of attendance, if any, for
attending each meeting of the Board of Directors. Directors who are not
full-time employees of the Corporation may be paid such additional compensation
for their services as directors as may from time to time be fixed by resolution
of the Board of Directors. Nothing herein contained shall be construed to
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 2. Members of the Executive Committee and members of other
committees of the Board of Directors who are not full-time employees of the
Corporation may, pursuant to resolution of the Board of Directors, be paid a
stated sum for attending meetings of such committees. All members of committees
of the Board of Directors may, pursuant to resolution of the Board of Directors,
be allowed their expenses of attendance, if any, for attending meetings of such
committees.
ARTICLE VII
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Annual meetings of the Board of Directors shall be held at such
place within or without the State of Delaware as soon as practicable following
the election of new directors at the annual meeting of the stockholders.
Section 2. Regular meetings of the Board of Directors may be held at such
time and place, within or without the State of Delaware as shall from time to
time be determined by the Board of Directors. After there has been such
determination and notice thereof has been once given to each member of the Board
of Directors, regular meetings may be held without any further notice being
given.
Section 3. Special meetings of the Board of Directors may be called by the
Chief Executive Officer on twenty-four hour's notice to each director, either
personally or by mail, by telegram, or by other means permitted by applicable
law; special meetings shall be called by the Chief Executive Officer or
Secretary in like manner and on like notice on the written request of a majority
of the directors.
Section 4. At all meetings of the Board of Directors, a majority of the
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation or by these ByLaws. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
ARTICLE VII-A
WAR AND NATIONAL EMERGENCY
Section 1. The emergency bylaws provided in this Article VII-A shall be
operative during any emergency resulting from an attack on the United States, or
during any nuclear or atomic disaster, or during the existence of any
catastrophe, or other similar emergency condition, as a result of which a quorum
of the Board of Directors cannot readily be convened for action. To the extent
not inconsistent with these emergency bylaws, the ByLaws of the Corporation
shall remain in effect during any emergency and upon its termination these
emergency bylaws shall cease to be operative.
Section 2. During any such emergency a meeting of the Board of Directors
may be called by any officer or director by giving two days' notice thereof to
such of the directors as it may be feasible to reach at the time and by such
means as may be feasible at the time. The notice shall specify the time and the
place of the meeting, which shall be the head office of the Corporation or any
other place specified in the notice. At any such meeting three members of the
then existing Board of Directors shall constitute a quorum, which may act by
majority vote.
Section 3. If the number of directors who are available to act shall drop
below three, additional directors, in whatever number is necessary to constitute
a Board of three Directors, shall be selected automatically from the first
available officers or employees in the order provided in the emergency
succession list established by the Board of Directors and in effect at the time
an emergency arises. Additional directors, beyond the minimum number of three
directors, but not more than three additional directors, may be elected from any
officers or employees on the emergency succession list.
Section 4. The Board of Directors is empowered with the maximum authority
possible under the Delaware Corporation Law, and all other applicable law, to
conduct the interim management of the affairs of the Corporation in an emergency
in what it considers to be in the best interests of the Corporation (including
the right to amend this Article) irrespective of the provisions of the
Certificate of Incorporation or of the ByLaws.
ARTICLE VIII
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board of
Directors, shall include a Chief Executive Officer, and may include a President,
a Chairman of the Board (who shall be selected from the directors then serving),
one or more Vice Chairmen of the Board (who shall be selected from the directors
then serving), one or more Executive Vice Presidents, Senior Vice Presidents,
and Vice Presidents, respectively, a General Counsel, a Secretary, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, and a
Controller. Any number of offices may be held by the same person, but if an
instrument is required by law to be executed, acknowledged or verified by two or
more officers, no officer shall execute, acknowledge or verify such instrument
in more than one capacity for such purpose.
Section 2. Without limiting the right of the Board of Directors to choose
officers of the Corporation at any time when vacancies occur or when the number
of officers is increased, the Board of Directors at the first meeting after each
annual meeting of stockholders shall choose a Chief Executive Officer, a
President and such other officers as shall be designated at such time,
including, if so designated, a Chairman of the Board, one or more Vice Chairmen
of the Board, Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents, respectively, a General Counsel, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, and a Controller.
None of said officers, except the Chairman of the Board, and Vice Chairmen of
the Board, need be members of the Board.
Section 3. The Board of Directors may choose such other officers and agents
as it shall deem necessary or advisable, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors, or, in the absence of
exact specification or limitation thereof by the Board of Directors, as the
Chief Executive Officer may determine from time to time. Subject to the below
provisions, each of the officers of the Corporation elected by the Board of
Directors or appointed by an officer in accordance with these ByLaws shall have
the powers and duties prescribed by law, by the ByLaws or by the Board of
Directors and, in the case of appointed officers, the powers and duties
prescribed by the appointing officer, and, unless otherwise prescribed by the
ByLaws or by the Board of Directors or such appointing officer, shall have such
further powers and duties as ordinarily pertain to that office.
Section 4. The salaries of all officers of the Corporation and of its
wholly owned subsidiaries, other than his own salary, shall be determined by the
Chief Executive Officer but shall be reviewed from time to time by an Executive
Compensation Committee appointed by the Board of Directors from among its
members. The Executive Compensation Committee shall recommend to the Board of
Directors such changes in the officers' salaries as fixed by the Chief Executive
Officer as it may deem appropriate and the Board of Directors shall instruct the
Chief Executive Officer to implement those of the recommended changes which it
approves. The salary of the Chief Executive Officer shall be determined by the
Executive Compensation Committee.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time with or without
cause by the affirmative vote of a majority of the whole Board of Directors.
ARTICLE IX
CHAIRMAN OF THE BOARD
Section 1. The Chairman of the Board shall do and perform such duties as
may from time to time be assigned to him by the Board of Directors or the Chief
Executive Officer.
ARTICLE X
CHIEF EXECUTIVE OFFICER
Section 1. The Chief Executive Officer shall preside at all meetings of the
stockholders and of the Board of Directors, and shall be a member, ex officio,
of all committees, except the Audit, Stock Option, Nominating and Executive
Compensation committees. The Chief Executive Officer shall have general and
active management of the business of the Corporation, and shall see that all
orders and resolutions of the Board of Directors and of the committees thereof
are carried into effect.
Section 2. The Chief Executive Officer shall have authority, which he may
delegate, to execute certificates of stock, bonds, deeds, powers of attorney,
mortgages and other contracts, under the seal of the Corporation, unless
required by law to be otherwise signed and executed and unless the signing and
execution thereof shall be expressly and exclusively delegated by the Board of
Directors to some other officer or agent of the Corporation.
ARTICLE XI
VICE CHAIRMAN OF THE BOARD
Section 1. In the absence of the Chief Executive Officer, the Vice Chairman
(or, if there exists more than one Vice Chairman, the Vice Chairman designated
by the Board of Directors) shall serve as the Chief Executive Officer of the
Corporation. The Vice Chairmen of the Board shall advise and counsel with the
Chief Executive Officer and with other officers of the Corporation, and each
shall do and perform such other duties as may from time to time be assigned to
him by the Board of Directors or the Chief Executive Officer.
Section 2. Any Vice Chairman of the Board, to the extent delegated by the
Chief Executive Officer or the Board of Directors, may execute certificates of
stock, bonds, deeds, powers of attorney, mortgages and other contracts under the
seal of the Corporation, unless required by law to be otherwise signed and
executed and unless the signing and execution thereof be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
ARTICLE XII
PRESIDENT
Section 1. The President, if one is elected, may be the chief operating
officer of the Corporation.
Section 2. The President shall have the authority, which he may delegate,
to execute certificates of stock, bonds, deeds, powers of attorney, mortgages
and other contracts, under the seal of the Corporation, unless required by law
to be otherwise signed and executed and unless the signing and execution thereof
shall be expressly and exclusively delegated by the Board of Directors or the
Chief Executive Officer to some other officer or agent of the Corporation.
ARTICLE XIII
VICE PRESIDENTS
Section 1. There may be one or more Executive Vice Presidents, one or more
Senior Vice Presidents, and such other Vice Presidents, with or without other
such special designations, as may be elected by the Board of Directors from time
to time.
Section 2. The Executive Vice Presidents and each of the Vice Presidents
shall have the authority to sign certificates of stock, bonds, deeds, mortgages
and other contracts, unless required by law to be otherwise signed and executed
and unless the signing and execution thereof shall be expressly and exclusively
delegated by the Board of Directors or the Chief Executive Officer to some other
officer or agent of the Corporation, and perform such duties and exercise such
powers as the Board of Directors or the Chief Executive Officer shall prescribe.
ARTICLE XIV
SECRETARY
Section 1. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for all committees of the Board of Directors when required.
He shall give, or cause to be given, all required notices of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the Chief Executive Officer,
under whose supervision he shall be. He shall be responsible for keeping in safe
custody the seal of the Corporation, and when such is proper, he shall affix the
same to any instrument requiring it, and when so affixed, it shall be attested
by his signature or by the signature of an Assistant Secretary.
Section 2. The Assistant Secretaries in the absence or disability of the
Secretary shall perform and exercise the powers of the Secretary and shall
perform such further duties as may be prescribed by the Secretary, the Board of
Directors or the Chief Executive Officer.
ARTICLE XV
TREASURER
Section 1. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation, in
such depositories as may be designated by the Board of Directors or the Chief
Executive Officer.
Section 2. The Treasurer shall: (a) endorse or cause to be endorsed in the
name of the Corporation for collection the bills, notes, checks or other
negotiable instruments received by the Corporation, (b) sign or cause to be
signed all bills, notes, checks or other negotiable instruments issued by the
Corporation and (c) pay out or cause to be paid out money, as the Corporation
may require, taking proper vouchers therefor; provided, however, that the Board
of Directors and the Chief Executive Officer may by resolution delegate, with or
without power to re-delegate, any and all of the foregoing duties of the
Treasurer to other officers, employees or agents of the Corporation, and to
provide that other officers, employees and agents shall have power to sign
bills, notes, checks, vouchers, orders, or other instruments on behalf of the
Corporation. The Treasurer shall render to the Chief Executive Officer and to
the Board of Directors, whenever they may require it, an account of his
transactions as Treasurer.
Section 3. The Treasurer shall give the Corporation a bond if required by
the Board of Directors in a sum, and with one or more sureties satisfactory to
the Board, for the faithful performance of the duties of his office and for the
restoration of the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section 4. The Assistant Treasurers in the absence or disability of the
Treasurer shall perform and exercise the powers of the Treasurer and shall
perform such further duties as may be prescribed by the Treasurer, the Board of
Directors or the Chief Executive Officer.
ARTICLE XVI
CONTROLLER
Section 1. The Controller shall have charge of the Corporation's books of
account, records and auditing, and shall be subject in all matters to the
control of the Board of Directors and the Chief Executive Officer.
ARTICLE XVII
VACANCIES AND DELEGATION OF DUTIES OF OFFICERS
Section 1. If the office of any officer or agent, one or more, becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office, or otherwise, the Board of Directors may choose a successor or
successors, who shall, unless the Board of Directors otherwise specifies, hold
office for the unexpired term in respect of which such vacancy occurred, or
until his successor shall be elected.
Section 2. In case of the absence of any officer of the Corporation, or for
any other reason that the Board of Directors may deem sufficient, the Board of
Directors may delegate, for the time being, the powers or duties, or any of
them, of such officer to any other officers and/or directors; provided a
majority of the entire Board of Directors concurs therein.
ARTICLE XVIII
STOCK AND STOCKHOLDERS
Section 1. The shares of stock of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the
Corporation's stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate as provided in Article XVIII, Section 2 of these
ByLaws, or as otherwise permitted by law, representing the number of shares
registered in certificate form.
Section 2. The certificates of stock of the Corporation shall be numbered
and shall be entered in the books of the Corporation as they are issued. They
shall exhibit the holder's name and number of shares and shall be signed by the
Chairman of the Board, Chief Executive Officer, Vice Chairman of the Board,
President or a Vice President, and the Secretary or an Assistant Secretary. Any
and all signatures on a stock certificate may be a facsimile.
Section 3. Upon surrender to the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation will issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books. Transfers of uncertificated shares will be made on the records
of the Corporation as may be provided by law.
Section 4. The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person whether or not it shall
have express or other notice thereof, except as expressly provided by the laws
of Delaware.
Section 5. A new certificate of stock of the Corporation may be issued in
place of any certificate theretofore issued by the Corporation and alleged to
have been lost, stolen or destroyed.
The Board of Directors may from time to time prescribe the terms and
conditions under which such new certificates may be issued. Among other things,
the Board of Directors may require that the owner of the allegedly lost, stolen
or destroyed certificate, or his legal representatives, submit proper evidence
in writing and under oath that the alleged loss, theft, or destruction actually
occurred, and may require that such owner or representatives give the
Corporation a bond, satisfactory to the Corporation as to form and security,
sufficient 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 any such new certificate. A new certificate may
be issued without requiring any bond when, in the judgment of the Board of
Directors or of any officer of the Corporation to whom the Board of Directors
may delegate appropriate authority, it is proper to waive the bond requirement.
ARTICLE XIX
INSPECTION OF BOOKS, CHECKS AND FISCAL YEAR
Section 1. The Board of Directors shall determine from time to time
whether, and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may by statute be
specifically open to inspection), or any of them, shall be open to the
inspection of the stockholders, and the stockholders' rights in this respect are
and shall be restricted and limited accordingly.
Section 2. Checks or demands for money and notes of the Corporation may be
signed by such officer or officers or such person or persons other than those
herein authorized and in such manner as the Board of Directors or the Chief
Executive Officer may from time to time provide.
Section 3. The fiscal year shall begin the first day in January of each
year and end the following December 31.
ARTICLE XX
DIRECTORS' ANNUAL STATEMENT
Section 1. The Board of Directors shall present at each annual meeting a
full and clear statement of the business and condition of the Corporation.
ARTICLE XXI
NOTICES
Section 1. Whenever under the provisions of the Certificate of
Incorporation or of these ByLaws notice (which as herein used shall include also
annual reports, proxy statements and solicitations and other communications to
holders of the Corporation's securities) is required to be, or may be, given to
any director, officer, stockholder or other person, it may, unless legally
controlling provisions prohibit the same, be given in writing, by mail, by
depositing the same in any U.S. post office or letter-box, in a postpaid sealed
wrapper addressed to such person to whom the notice may be, or is required to be
given, at such address as appears on the books of the Corporation, and all
notices given in accordance with the provisions of this Article shall be deemed
to be given at the time when the same is deposited in the mail. In addition, the
Corporation may give notice by electronic transmission pursuant to Title 8,
Section 232 of the Delaware Code, or its successor.
Section 2. Should a person who is a stockholder own shares evidenced by
more than one stock certificate, nevertheless only one notice (when any is
required to be, or may be, given to holders of shares of any or all classes)
shall be, in the sole discretion of the Corporation, required to be mailed and
if different addresses as to such person are recorded on the Corporation's stock
ledger the notice may be mailed to the address that appears to have been given
latest in time unless the stockholders shall have expressly directed otherwise
in writing to the Secretary of the Corporation, nor shall variations in the
designation of the name or identity of any one stockholder require the mailing
of more than one notice to any one stockholder, which may be mailed to any one
of the names or designations that may so appear in the Corporation's stock
ledger with respect to such stockholder; and, at the sole discretion of the
Corporation, the distribution of dividend payments may be, unless a stockholder
shall expressly request multiple distributions strictly in accordance with the
stock ledger record of his multiple ownerships, handled in accordance with or so
as not to be repugnant to the purpose of the above provisions, which is to avoid
the expenditure by the Corporation of effort, time and expense in such matters
that might have been avoided had the recording of a stockholder's name and/or
address incident to his multiple record ownership of shares been effected
accurately, uniformly and consistently.
Section 3. Any stockholder, director or officer may waive in writing or
otherwise any notice required to be given under the provisions of pertinent
statutes or of the Certificate of Incorporation or of these ByLaws. A waiver of
notice in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
such notice.
ARTICLE XXII
INDEMNIFICATION
Section 1. The Corporation shall, to the full extent permitted by the Laws
of the State of Delaware as then in effect or, if less stringent, in effect on
December 31, 1985 ("Delaware Law"), indemnify any person (the "Indemnitee") made
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative and
whether or not by or in the right of the Corporation, by reason of the fact that
the Indemnitee is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, trustee, partner, or other agent of any other enterprise or legal
person (any such action, suit or proceeding being herein referred to as a "Legal
Action") against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the Indemnitee in
connection with such Legal Action or its investigation, defense or appeal
(herein called "Indemnified Expenses"), if the Indemnitee has met the standard
of conduct necessary under Delaware Law to permit such indemnification. Rights
to indemnification shall extend to the heirs, beneficiaries, administrators and
executors of any deceased Indemnitee.
For purposes of this Section, reference to "any other enterprise or legal
person" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
The Indemnified Expenses shall be paid by the Corporation in advance as
shall be appropriate to permit Indemnitee to defray such expenses currently as
incurred, provided the Indemnitee agrees in writing that in the event it shall
ultimately be determined as provided hereunder that Indemnitee was not entitled
to be indemnified, then Indemnitee shall promptly repay to the Corporation such
amounts so paid. The prepayment of expenses as provided for in this Section 1
shall be authorized by the Board of Directors in the specific case unless the
Board of Directors receives within thirty (30) days of the Indemnitee's request
for indemnification an opinion of counsel selected in the manner provided for in
Section 2 of this Article XXII that there is no reasonable basis for a belief
that the Indemnitee's conduct met the requisite standard of conduct. The fees of
such counsel and all related expenses shall, in all cases, be paid by the
Corporation.
Section 2. The determination of whether Indemnitee has met the standard of
conduct required to permit indemnification under this ByLaw shall in the first
instance be submitted to the Board of Directors of the Corporation. If the Board
by a majority vote of a quorum consisting of directors who were not parties to
such Legal Action determines Indemnitee has met the required standard of conduct
such determination shall be conclusive; but if such affirmative majority vote is
not given, then the matter shall be referred to independent legal counsel for
determination. Such outside counsel shall be selected by agreement of the Board
of Directors and Indemnitee or, if they are unable to agree, then by lot from
among those New York City law firms which (i) have more than 100 attorneys, (ii)
have a substantial practice in the corporate and securities areas of law, (iii)
have not performed any services for the Corporation or any of its subsidiaries
or affiliates for at least five (5) years and (iv) have a rating of "av" in the
then current Martindale-Hubbell Law Directory. The fees and expenses of counsel
in connection with making this determination shall be paid by the Corporation.
Notwithstanding the foregoing, if dissatisfied with the determination so
made by counsel, Indemnitee may within two (2) years thereafter, petition any
court of competent jurisdiction to determine whether Indemnitee is entitled to
indemnification under the provisions hereof and such court shall thereupon have
the exclusive authority to make such determination. The Corporation shall pay
all expenses (including attorneys' fees) actually incurred by Indemnitee in
connection with such judicial determination.
The termination of any Legal Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not meet the requisite
standard of conduct; however, a successful defense of a Legal Action by
Indemnitee on the merits or otherwise shall conclusively establish Indemnitee
did meet such standard of conduct notwithstanding any previous determination to
the contrary under this Section 2.
Section 3. The indemnification and advance payment of expenses as provided
in this Article XXII shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any provision of law, the Certificate of
Incorporation, any ByLaw or otherwise.
Section 4. If any provision of this Article XXII shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions of this Article XXII
shall not in any way be affected or impaired thereby.
Section 5. Any amendment, repeal or modification of these ByLaws, the
Corporation's Certificate of Incorporation or any applicable provision of
Delaware Law, or any other instrument, which eliminates or diminishes the
indemnification rights provided for in this Article XXII shall be ineffective as
against an Indemnitee with respect to any Legal Action based upon actions taken
or not taken by the Indemnitee prior to such repeal or the adoption of such
modification or amendment. The provisions of this ByLaw shall be applicable to
all Legal Actions made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after its adoption. The
provisions of this ByLaw shall be deemed to be a contract between the
Corporation and each director or officer who serves in such capacity at any time
while this ByLaw and the relevant provisions of Delaware Law and other
applicable law, if any, are in effect. If any provision of this ByLaw shall be
found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions hereof.
The rights of indemnification provided in this ByLaw shall neither be exclusive
of, nor be deemed in limitation of, any rights to which an officer, director,
employee or agent may otherwise be entitled or permitted by contract, this
ByLaw, vote of stockholders or directors or otherwise, or as a matter of law,
both as to actions in such person's official capacity and actions in any other
capacity while holding such office, it being the policy of the Corporation that
indemnification of any person whom the Corporation is obligated to indemnify
pursuant to this ByLaw shall be made to the fullest extent permitted by law.
ARTICLE XXIII
AMENDMENTS
Section 1. These ByLaws may be altered or amended or repealed, in whole or
in part: By the affirmative vote of the holders of a majority of the stock
issued and outstanding and entitled to a vote thereat, at any regular or special
meeting of the stockholders, or by the affirmative vote of a majority of the
Board of Directors in attendance at any regular or special meeting of the Board
of Directors; provided, however, that, notwithstanding any other provisions of
these ByLaws or any provision of law which might otherwise permit a lesser vote
of the stockholders, the affirmative vote of the holders of at least 75 percent
in voting power of all shares of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required
in order for the stockholders to alter, amend or repeal Section 8 and Section 11
of Article III, Sections 2 and 6 of Article IV or this proviso to this Article
XXIII of these ByLaws or to adopt any provision inconsistent with any of such
Sections or with this proviso.