Exhibit
3.1
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AS
AMENDED THROUGH |
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May
10, 2005 |
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LOEWS
CORPORATION
BY-LAWS
OF
LOEWS
CORPORATION
(A
Delaware Corporation)
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ARTICLE
1
DEFINITIONS
As used
in these By-laws, words of any gender (masculine, feminine, neuter) mean and
include correlative words of the other genders, and unless the context otherwise
requires, the term:
1.1 “Board” means
the Board of Directors of the Corporation.
1.2 “By-laws” means
the initial by-laws of the Corporation, as amended, supplemented or restated,
from time to time.
1.3 “Certificate
of Incorporation” means
the initial certificate of incorporation of the Corporation, as amended,
supplemented or restated from time to time.
1.4 “Corporation” means
Loews Corporation.
1.5 “Directors” means
directors of the Corporation.
1.6 “General
Corporation Law” means
the General Corporation Law of the State of Delaware, as amended from time to
time.
1.7 “Office
of the Corporation” means
the executive office of the Corporation, anything in Section 131 of the General
Corporation Law to the contrary notwithstanding.
1.8 “Stockholders” means
stockholders of record of the Corporation.
1.9 “Whole
Board” means
the total number of directors which the Corporation would have if there were no
vacancies on the Board of Directors.
ARTICLE
2
STOCKHOLDERS
2.1 Place
of Meetings.
Every
meeting of Stockholders shall be held at the Office of the Corporation or at
such other place within or without the State of Delaware as shall be specified
or fixed in the notice of such meeting or in the waiver of notice
thereof.
2.2 Annual
Meeting. A
meeting of Stockholders shall be held annually for the election of directors and
the transaction of other business at such hour as may be designated in the
notice of meeting, on the second Tuesday in May in each year (or, if such date
falls on a legal holiday, on the first business day thereafter which is not a
Saturday, Sunday or legal holiday), or on such other date, as may be fixed by
the Board.
2.3 Special
Meetings. A
special meeting of Stockholders, unless otherwise prescribed by statute, may be
called at any time by the Board or by the Chairman of the Board, the President,
or by the Secretary and shall be called by the Chairman of the Board, the
President, or by the Secretary on the written request of holders of a majority
of the shares of capital stock of the Corporation entitled to vote in an
election of directors, which written request shall state the purpose or purposes
of such meeting. At any special meeting of Stockholders only such business may
be transacted which is related to the purpose or purposes of such meeting set
forth in the notice thereof given pursuant to Section 2.5 of the By-laws or in
any waiver of notice thereof given pursuant to the General Corporation
Law.
2.4 Fixing
Record Date. For the
purpose of determining the Stockholders entitled to notice of or to vote at any
meeting of Stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or for the purpose of determining
Stockholders entitled to receive payment of any dividend or the 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 a date as the record date for any such determination of Stockholders.
Such date 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. If no such
record date is fixed:
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2.4.1 |
The
record date for determining Stockholders entitled to notice of or to vote
at a meeting of Stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held; |
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2.4.2 |
The
record date for determining Stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the
Board is necessary, shall be the day on which the first written consent is
expressed; |
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2.4.3 |
The
record date for determining Stockholders for any purpose other than
specified in Sections 2.4.1 and 2.4.2 shall be at the close of business on
the day on which the Board adopts the resolution relating
thereto. |
When a
determination of Stockholders entitled to notice of or to vote at any meeting of
Stockholders has been made as provided in this Section 2.4 such determination
shall apply to any adjournment thereof, unless the Board fixes a new record date
for the adjourned meeting.
2.5 Notice
of Meetings of Stockholders. Except
as otherwise provided in Sections 2.3 and 2.4 of the By-laws, whenever under the
General Corporation Law or the Certificate of Incorporation or the By-laws,
Stockholders are required or permitted to take any action at a meeting, written
notice shall be given stating the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. A copy of the notice of any meeting shall be given, personally or by
mail not less than ten nor more than sixty days before the date of the meeting,
to each stockholder entitled to notice of or to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the United States
mail, with postage prepaid, directed to the stockholder at the address of such
Stockholder as it appears on the records of the Corporation. An affidavit of the
Secretary or an Assistant Secretary or of the transfer agent or other agent of
the Corporation that the notice required by this section has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
When a meeting is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, 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.
2.6 List
of Stockholders. The
Secretary shall prepare and make, or cause to be prepared and made, at least ten
days before every meeting of Stockholders, a complete list of the Stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each Stockholder and the number of shares registered in the name of
each Stockholder. 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 the principal place
of business of the Corporation or on a reasonably accessible electronic network,
provided that, in the latter case, information required to gain access to such
list is provided with the notice of the meeting. 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.
2.7 Quorum
of Stockholders; Adjournment. The
holders of a majority of the shares of stock entitled to vote at any meeting of
Stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at
such
meeting. When a quorum is once present to organize a meeting of Stockholders, it
is not broken by the subsequent withdrawal of any Stockholders. The chairman of
any meeting of Stockholders, or the holders of a majority of the shares of stock
present in person or represented by proxy at any meeting of Stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place.
2.8 Voting;
Proxies.
Unless
otherwise provided in the Certificate of Incorporation, every Stockholder shall
be entitled at every meeting of Stockholders to one vote for each share of
capital stock held by such Stockholder as of the record date determined in
accordance with Section 2.4 of the By-laws. If the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, every
reference in the By-laws or the General Corporation Law to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock. The provisions of Sections 212 and 217 of the General
Corporation Law shall apply in determining whether any shares of capital stock
may be voted and the persons, if any, entitled to vote such shares; but the
Corporation shall be protected in treating the persons in whose names shares of
capital stock stand on the record of Stockholders as owners thereof for all
purposes. At any meeting of Stockholders, a quorum being present, all matters,
except as otherwise provided by law or by the Certificate of Incorporation or by
the By-laws, shall be decided by a majority of the votes cast at such meeting by
the holders of shares present in person or represented by proxy and entitled to
vote thereon. All elections of directors shall be by written ballot, unless
otherwise provided in the Certificate of Incorporation; if authorized by the
Board of Directors, such requirement of a written ballot shall be satisfied by a
ballot submitted by electronic transmission, provided that any such electronic
transmission must either set forth or be submitted with information from which
it can be determined that the electronic transmission was authorized by the
Stockholder or proxy holder. Each written ballot shall be signed by the
Stockholder voting or by the proxy of such Stockholder, and shall state the
number of shares voted. On all other questions, the voting may be voice vote.
Every Stockholder entitled to vote at a meeting of Stockholders or to express
consent or dissent without a meeting may authorize another person or persons to
act for him by proxy. The validity and enforceability of any proxy shall be
determined in accordance with the General Corporation Law.
2.9 Selection
and Duties of Inspectors at Meetings of Stockholders. The
Board, in advance of any meeting of Stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person appointed fails to appear or act, the vacancy may
be filled by appointment made by the Board in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and according
to the best of his ability. The inspector or inspectors shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a
quorum,
the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all Stockholders. On request of the person presiding at
the meeting or any stockholder entitled to vote thereat, the inspector or
inspectors shall make a report in writing of any challenge, question or matter
determined by him or them and execute a certificate of any fact found by him or
them. Any report or certificate made by the inspector or inspectors shall be
prima facie evidence of the facts stated and of the vote as certified by him or
them.
2.10 Organization. At every
meeting of Stockholders, unless otherwise directed by the Board, the President,
or in the absence of the President, the Chairman of the Board, or in the absence
of either of them, the Chairman of the Executive Committee, or in the absence of
all of them the most senior Vice President (based on term of service as Vice
President) present shall act as chairman of the meeting. The Secretary, or in
the absence of the Secretary, one of the Assistant Secretaries, shall act as
secretary of the meeting. In case none of the officers above designated to act
as chairman or secretary of the meeting, respectively, shall be present a
chairman or a secretary of the meeting, as the case may be, shall be chosen by a
majority of the votes cast at such meeting by the holders of shares of capital
stock present in person or represented by proxy and entitled to vote at the
meeting.
2.11 Order
of Business. The
order of business at all meetings of Stockholders shall be as determined by the
chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
ARTICLE
3
DIRECTORS
3.1 General
Powers. Except
as otherwise provided in the Certificate of Incorporation, the business and
affairs of the Corporation shall be managed by or under the direction of the
Board. The Board may adopt such rules and regulations, not inconsistent with the
Certificate of Incorporation or the By-laws or applicable laws, as it may deem
proper for the conduct of its meetings and the management of the Corporation. In
addition to the powers expressly conferred by the By-laws, the Board may
exercise all powers and perform all acts which are not required, by the By-laws
or the Certificate of Incorporation or by law, to be exercised and performed by
the Stockholders.
3.2 Number;
Qualification; Term of Office. The
Board shall consist of one or more members. The number of directors shall be
fixed initially by the Board and may thereafter be changed from time to time by
action of the Stockholders or by a majority of the Whole Board. Directors need
not be Stockholders. Each director shall hold office
until his
successor is elected and qualified or until his earlier death, resignation or
removal.
3.3 Election.
Directors shall except as otherwise required by law or by the Certificate of
Incorporation, be elected by a plurality of the votes cast at a meeting of
Stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly
Created Directorships and Vacancies. Unless
otherwise provided in the Certificate of Incorporation, newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the Board for any reason, including the removal of
directors without cause, may be filled by vote of a majority of the directors
then in office, although less than a quorum, at any meeting of the Board or may
be elected by a plurality of the votes cast by the holders of shares of capital
stock entitled to vote in the election at a special meeting of Stockholders
called for that purpose. A director elected to fill a vacancy shall be elected
to hold office until his successor is elected and qualified, or until his
earlier death, resignation or removal.
3.5 Resignations. Any
director may resign at any time by notice given in writing to the Corporation.
Such resignation shall take effect at the time therein specified, and the
acceptance of such resignation shall not be necessary to make it
effective.
3.6 Removal
of Directors.
Any or
all of the directors may be removed, with or without cause, by vote of the
Stockholders.
3.7 Remuneration. Unless
otherwise expressly provided by resolution adopted by the Board, none of the
directors or of the members of any committee of the Corporation contemplated by
the By-laws or otherwise provided for by resolution of the Board shall as such
receive any stated remuneration for his services; but the Board may at any time
or from time to time by resolution provide that remuneration shall be paid to,
or on behalf of, any director of the Corporation or to any member of any such
committee who shall not be in the employ of the Corporation or of any of its
subsidiary companies, either as his annual remuneration as such director or
member or as remuneration for his attendance at each meeting of the Board or of
such committee. The Board may also likewise provide that the Corporation shall
reimburse each such director or member of such committee for any expenses paid
by him on account of his attendance at any such meeting. Nothing in this Section
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving remuneration
therefor.
3.8 Place
and Time of Meetings of the Board. Meetings
of the Board, regular or special, may be held at any place within or without the
State of Delaware. The times and places for holding meetings of the Board may be
fixed from time to time by resolution of the Board or (unless contrary to
resolution of the Board) in the notice of the meeting.
3.9 Annual
Meetings. On the
day when and at the place where the annual meeting of Stockholders for the
election of directors is held, or as soon as practicable thereafter, the Board
may hold its annual meeting, without notice of such meeting, for the purposes of
electing officers and transacting other business. The annual meeting of the
Board may be held at any other time and place specified in a notice given as
provided in Section 3.11 of the By-laws for special meetings of the Board or in
a waiver of notice thereof.
3.10 Regular
Meetings. Regular
meetings of the Board may be held at such times and places as may be fixed from
time to time by the Board. Unless otherwise required by the Board, regular
meetings of the Board may be held without notice. If any day fixed for a regular
meeting of the Board shall be a Saturday or Sunday or a legal holiday at the
place where such meeting is to be held, then such meeting shall be held at the
same hour at the same place on the first business day thereafter which is not a
Saturday, Sunday or legal holiday.
3.11 Special
Meetings. Special
meetings of the Board shall be held whenever called by the Chairman of the
Board, the President, or by the Secretary or by any two or more directors.
Notice of each special meeting of the Board shall be given to each director at
the address designated by him for that purpose or, if none is designated, at his
last known business or residence address, in writing by first-class or overnight
mail or courier service, facsimile or electronic transmission, hand delivery or
orally by telephone. If mailed, such notice shall be deemed adequately delivered
when deposited in the United States mails, with postage thereon prepaid, at
least two days before such meeting. If by overnight mail or courier service,
such notice shall be deemed adequately delivered when delivered to the overnight
mail or courier service company at least one day before such meeting. If by
facsimile or electronic transmission, such notice shall be deemed adequately
delivered when transmitted at least 12 hours prior to the time set for the
meeting. If by hand delivery or telephone, the notice shall be given at least 12
hours prior to the time set for the meeting. Every such notice shall state the
time and place of the meeting but need not state the purposes of the meeting,
except to the extent required by law. A meeting may be held at any time without
notice if all the directors are present or if those not present waive notice of
the meeting.
3.12 Adjourned
Meetings. A
majority of the directors present at any meeting of the Board, including an
adjourned meeting, whether or not a quorum is present may adjourn such meeting
to another time and place. Notice of any adjourned meeting of the Board need not
be given to any director whether or not present at the time of the adjournment.
Any business may be transacted at any adjourned meeting that might have been
transacted at the meeting as originally called.
3.13 Waiver
of Notice. Whenever
notice is required to be given to any director or member of a committee of
directors under any provision of the General Corporation Law or of the
Certificate of Incorporation or By-laws, a written waiver thereof, signed by the
person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall
be
deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice or any waiver by
electronic transmission.
3.14 Organization. At each
meeting of the Board, the Chairman of the Board, or in the absence of the
Chairman of the Board, the President of the Corporation, or in the absence of
the President, the Chairman of the Executive Committee, or in the absence of all
of them a chairman chosen by the majority of the directors present, shall
preside. The Secretary shall act as secretary at each meeting of the Board. In
case the Secretary shall be absent from any meeting of the Board, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and Assistant Secretaries, the
person presiding at the meeting may appoint any person to act as secretary of
the meeting.
3.15 Quorum
of Directors. A
majority of the directors then in office shall constitute a quorum for the
transaction of business or of any specified item of business at any meeting of
the Board.
3.16 Action
by the Board.
All
corporate action taken by the Board or any committee thereof shall be taken at a
meeting of the Board, or of such committee, as the case may be, except that 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 or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or
committee. Members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board, or of such 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 Section 3.16 shall constitute
presence in person at such meeting. Except as otherwise provided by the
Certificate of Incorporation or by law, the vote of a majority of the directors
present (including those who participate by means of conference telephone or
other communications equipment) at the time of the vote, if a quorum is present
(including those who participate by means of conference telephone or other
communications equipment) at such time, shall be the act of the
Board.
ARTICLE
4
COMMITTEES
OF THE BOARD
4.1 Executive
Committee; Appointment, Term of Office, etc.
(a) The Board
may designate an Executive Committee consisting of the Chairman of the Executive
Committee, if any, and such other directors as it may designate. Each member of
the Executive Committee shall continue to be a member thereof only so long as he
remains a director and at the pleasure of the Board. Any member of the Executive
Committee may resign therefrom at any time by giving written notice of his
resignation to the Secretary. Any vacancies on the Executive Committee may be
filled by the Board. The designation and authority of the Executive Committee
shall be governed by Section 141(c)(2) of the General Corporation
Law.
(b) The
Executive Committee, between meetings of the Board, shall have and may exercise
the powers of the Board in the management of the property, business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Without limiting the foregoing, the
Executive Committee shall have the express power and authority to declare a
dividend, to authorize the issuance of stock, and to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law.
(c) Meetings
of the Executive Committee shall be held whenever called by the Chairman of the
Board, the President, the Secretary, the Chairman of the Executive Committee or
any two or more members of the Executive Committee. Notice of a meeting of the
Executive Committee shall be given to the members thereof in the same manner as,
and such notice shall be subject to all of the provisions prescribed for, notice
of a special meeting of the Board pursuant to Section 3.11 of the By-laws. A
meeting may be held at any time without notice if all the members of the
Executive Committee are present or if those not present waive notice of the
meeting. Subject to the provisions of the By-laws, the Executive Committee may
fix its own rules of procedure and it shall keep a record of its proceedings and
report them to the Board at the next regular or special meeting thereof after
such proceedings shall have been taken.
(d) Except as
otherwise provided by law, fifty percent (50%) or more of the members of the
Executive Committee then in office shall constitute a quorum for the transaction
of business and the act of a majority of those present at a meeting thereof
shall be the act of the Executive Committee. In the absence of a quorum, a
majority of the members of the Executive Committee present thereat may adjourn
such meeting from time to time until a quorum shall be present thereat. Notice
of any adjourned meeting need not be given. The Executive Committee shall act
only as a committee, and the individual members shall have no power as
such.
(e) In
addition to the foregoing, in the absence or disqualification of a member of the
Executive Committee, the members present at any meeting and not
disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
(f) At
each meeting of the Executive Committee, the Chairman of such committee or, in
the absence of the Chairman, a chairman chosen by a majority of the committee
members present, shall preside. The Secretary shall act as secretary at each
meeting of the Executive Committee. In case the Secretary shall be absent from
any such meeting, an Assistant Secretary shall perform the duties of secretary
at such meeting; and in the absence from any such meeting of the Secretary and
Assistant Secretaries, the person presiding at the meeting may appoint any
person to act as secretary of the meeting.
4.2 Additional
Committees of the Board.
(a) The
Board may designate one or more other committees (the “Additional Board
Committees”), which shall in each case consist of such number of directors and
shall have and may exercise such powers for such periods as the Board may
determine in the resolution designating such committee or in such committee’s
charter if a charter has been adopted for such committee by the Board. Each
member of an Additional Board Committee shall continue to be a member thereof
only so long as he remains a director and at the pleasure of the Board. Any
member of an Additional Board Committee may resign therefrom at any time by
giving written notice of his resignation to the Secretary. Any vacancies on an
Additional Board Committee may be filled by the Board. The designation and
authority of an Additional Board Committees created hereunder shall be governed
by Section 141(c)(2) of the General Corporation Law.
(b)
Meetings of an Additional Board Committee shall be held whenever called by the
Chairman of the Board, the President, the Secretary, the Chairman of such
committee or any two or more members of such committee. Notice of a meeting of
an Additional Board Committee shall be given to the members thereof in the same
manner as, and such notice shall be subject to all of the provisions prescribed
for, notice of a special meeting of the Board pursuant to Section 3.11 of the
By-laws. A meeting of an Additional Board Committee may be held at any time
without notice if all the members of such committee are present or if those not
present waive notice of the meeting. Subject to the provisions of the By-laws,
and the charter of an Additional Board Committee if a charter has been adopted
for such committee by the Board, each Additional Board Committee may fix its own
rules of procedure and each shall keep a record of its proceedings and report
them to the Board at the next regular or special meeting thereof after such
proceedings shall have been taken.
(c)
Except as otherwise provided by law, fifty percent (50%) or more of the members
of an Additional Board Committee then in office shall constitute a quorum for
the transaction of business, and the act of a majority of those present at a
meeting thereof shall be the act of an Additional Board Committee. In the
absence of a quorum, a majority of the members of an Additional Board Committee
present thereat may adjourn such meeting from time to time until a quorum shall
be present thereat. Notice of any
adjourned
meeting need not be given. An Additional Board Committee shall act only as a
committee, and the individual members shall have no power as such.
(d) In
addition to the foregoing, in the absence or disqualification of a member of an
Additional Board Committee, the members present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(e) At
each meeting of an Additional Board Committee, the Chairman of such committee
or, in the absence of the Chairman, a chairman chosen by a majority of the
committee members present, shall preside. The Secretary shall act as secretary
at each meeting of an Additional Board Committee. In case the Secretary shall be
absent from any such meeting, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
(f) The
application of Section 4.2(b) through (f) above to any Additional Board
Committee shall be subject to any lawful provision contained in a charter or
rules of procedure adopted from time to time by resolution of such Additional
Board Committee.
4.3 Other
Committees. Nothing
hereinbefore contained in this Article 4 shall be deemed to preclude the
designation by the President of committees, other than committees of the Board,
which may include officers and employees who are not directors.
ARTICLE
5
OFFICERS
5.1 Officers. The
Board shall elect a Chairman of the Board, a President, a Chairman of the
Executive Committee, a Secretary and a Treasurer, and as many Assistant
Secretaries and Assistant Treasurers as the Board may deem necessary, and may
elect or appoint one or more Vice Presidents and such other officers as it may
determine. The Board may designate one or more Vice Presidents as Senior Vice
President or Executive Vice President, and may use descriptive words or phrases
to designate the standing, seniority or area of special competence of the Vice
Presidents elected or appointed by it. Each officer shall hold his office until
his successor is elected and qualified or until his earlier death, resignation
or removal in the manner provided in Section 5.2 of the By-laws. Any two or more
offices may be held by the same person. The Board may require any officer to
give a bond or other security for the faithful performance of his duties, in
such amount and with such sureties as the Board may determine. All officers as
between themselves and the Corporation shall have such authority and perform
such duties in the management of the Corporation as may be provided in the
By-laws or as the Board may from time to time determine.
5.2 Removal
of Officers. Any
officer elected or appointed by the Board may be removed by the Board with or
without cause. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
5.3 Resignations. Any
officer may resign at any time in writing by notifying the Board, the Chairman
of the Board, the President, or the Secretary. Such resignation shall take
effect at the date of receipt of such notice or at such later time as is therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective. The resignation of an officer shall
be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A
vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled for the unexpired portion of the term in the
manner prescribed in the By-laws for the regular election or appointment to such
office.
5.5 Compensation. Salaries
or other compensation of the officers may be fixed from time to time by the
Board. No officer shall be prevented from receiving a salary or other
compensation by reason of the fact that he is also a director.
5.6 Chairman
of the Board. The
Chairman of the Board shall, if present, preside at all meetings of the Board.
He may, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation. He may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments, except in cases where the
signing and
execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed and, in general, he shall perform all duties incident
to the office of Chairman of the Board and such other duties as from time to
time may be assigned to him by the Board. The Board may designate two persons to
serve as Co-Chairmen of the Board of the Corporation in which case each
reference in the By-laws to the "Chairman of the Board" shall mean either
"Co-Chairman of the Board”. Where both individuals holding such office are
present, the individual with greater seniority shall exercise the powers of the
office, unless otherwise directed by the Board.
5.7 President
and Chief Executive Officer.
The
President shall be the Chief Executive Officer of the Corporation and as such
shall have the general powers and duties of supervision and management usually
vested in the office of President and Chief Executive Officer. The President, if
present, shall preside at all meetings of the Stockholders. The President may
also, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation; may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed; and shall
perform such other duties as from time to time may be assigned to him by the
Board.
5.8 Chairman
of the Executive Committee. The
Chairman of the Executive Committee shall have the powers and duties incident to
that office and shall have other powers and duties as may be prescribed from
time to time by the Board of Directors. He shall be a member of the Executive
Committee and shall preside at all meetings of the Executive Committee at which
he is present. In the event of the absence or disability of the President, he
shall perform the duties of the President, unless the Board of Directors shall
have designated another person to perform such duties.
5.9 Vice
Presidents.
Each Vice
President shall have such powers and shall perform such duties as shall be
assigned to such person by the President or the Board of Directors. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof is expressly delegated
by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or
executed.
5.10 Secretary. The
Secretary, if present, shall act as secretary of all meetings of the
Stockholders and of the Board, and shall keep the minutes thereof in the proper
book or books to be provided for that purpose; he shall see that all notices
required to be given by the Corporation are duly given and served; he may, with
the Chairman of the Board, the President, or a Vice President, sign certificates
for shares of capital stock of
the
Corporation; he shall be custodian of the seal of the Corporation and may seal
with the seal of the Corporation, or a facsimile thereof, all certificates for
shares of capital stock, of the Corporation and all documents the execution of
which on behalf of the Corporation under its corporate seal is authorized in
accordance with the provisions of the By-laws; he shall have charge of the stock
ledger and also of the other books, records and papers of the Corporation
relating to its organization and management as a Corporation, and shall see that
the reports, statements and other documents required by law are properly kept
and filed; and shall, 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 President.
5.11 Treasurer. The
Treasurer shall have charge and custody of, and be responsible for, all funds,
securities and notes of the Corporation; receive and give receipts for moneys
due and payable to the Corporation from any sources whatsoever; deposit all such
moneys in the name of the Corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the By-laws; against proper
vouchers, cause such funds to be disbursed by checks or drafts on the authorized
depositories of the Corporation signed in such manner as shall be determined in
accordance with any provisions of the By-laws, and be responsible for the
accuracy of the amounts of all moneys so disbursed; regularly enter or cause to
be entered in books to be kept by him or under his direction full and adequate
accounts of all moneys received or paid by him for the account of the
Corporation; have the right to require, from time to time reports or statements
giving such information as he may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the President, or the Board, whenever the President, or the
Board, respectively, require him so to do, an account of the financial condition
of the Corporation and of all his transactions as Treasurer; exhibit at all
reasonable times his books of account and other records to any of the directors
upon application at the Office of the Corporation where such books and records
are kept; and 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 President; and he may sign, with the Chairman of the Board,
the President, or a Vice President, certificates for shares of capital stock of
the Corporation.
5.12 Assistant
Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers shall perform such duties as
shall be assigned to them by the Secretary or by the Treasurer, respectively, or
by the Board, or the President. Assistant Secretaries and Assistant Treasurers
may, with the Chairman of the Board , the President, or a Vice President, sign
certificates for shares of capital stock of the Corporation.
ARTICLE
6
CONTRACTS,
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution
of Contracts. The
Board may authorize any officer, employee or agent, in the name and on behalf of
the Corporation, to enter into any contracts or execute and satisfy any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
6.2 Loans. The
Chairman of the Board, the President, or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loan and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and when authorized so to do may
pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority conferred
by the Board may be general or confined to specific instances or otherwise
limited.
6.3 Checks,
Drafts, Etc. All
checks, drafts and 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 on behalf of the Corporation in such manner as shall from time
to time be determined by resolution of the Board.
6.4 Deposits. The
funds of the Corporation not otherwise employed shall be deposited from time to
time to the order of the Corporation in such banks, trust companies or other
depositories as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power may from time to time be
delegated by the Board.
ARTICLE
7
STOCKS
AND DIVIDENDS
7.1 Certificates
Representing Shares. The
shares of capital stock of the Corporation shall be represented by certificates
in such form (consistent with the provisions of Section 158 of the General
Corporation Law) as shall be approved by the Board. Such certificates shall be
signed by the Chairman of the Board, the President, or a Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and may be sealed with the seal of the Corporation or a facsimile
thereof. The signatures of the officers upon a certificate may be facsimiles, if
the certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may,
unless
otherwise ordered by the Board, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the
date of issue.
7.2 Transfer
of Shares.
Transfers of shares of capital stock of the Corporation shall be made only on
the books of the Corporation by the holder thereof or by his duly authorized
attorney appointed by a power of attorney duly executed and filed with the
Secretary or a transfer agent of the Corporation, and on surrender of the
certificate or certificates representing such shares of capital stock properly
endorsed for transfer and upon payment of all necessary transfer taxes. Every
certificate exchanged, returned or surrendered to the Corporation shall be
marked "Canceled," with the date of cancellation, by the Secretary or an
Assistant Secretary or the transfer agent of the Corporation. A person in whose
name shares of capital stock shall stand on the books of the Corporation shall
be deemed the owner thereof to receive dividends, to vote as such owner and for
all other purposes as respects the Corporation. No transfer of shares of capital
stock shall be valid as against the Corporation, its Stockholders and creditors
for any purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 Transfer
and Registry Agents. The
Corporation may from time to time maintain one or more transfer offices or
agents and registry offices or agents at such place or places as may be
determined from time to time by the Board.
7.4 Lost,
Destroyed, Stolen and Mutilated Certificates. The
holder of any shares of capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction, theft or mutilation of the
certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board may, in its discretion, as, a condition to the
issue of any such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and to
advertise such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars, or such of them as the Board
may require, a bond in such form, in such sum and with such surety or sureties
as the Board may direct, to indemnify the Corporation and its transfer agents
and registrars against any claim that may be made against any of them on account
of the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations.
The Board
may make such rules and regulations as it may deem expedient, not inconsistent
with the By-laws or with the Certificate of Incorporation, concerning the issue,
transfer and registration of certificates representing shares of its capital
stock.
7.6 Restriction
on Transfer of Stock. A
written restriction on the transfer or registration of transfer of capital stock
of the Corporation, if permitted by Section 202 of the General Corporation Law
and noted conspicuously on the certificate representing
such
capital stock, may be enforced against the holder of the restricted capital
stock or any successor or transferee of the holder including an executor,
administrator, trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing such capital stock, a restriction,
even though permitted by Section 202 of the General Corporation Law, shall be
ineffective except against a person with actual knowledge of the restriction. A
restriction on the transfer or registration of transfer of capital stock of the
Corporation may be imposed either by the Certificate of Incorporation or by an
agreement among any number of Stockholders or among such Stockholders and the
Corporation. No restriction so imposed shall be binding with respect to capital
stock issued prior to the adoption of the restriction unless the holders of such
capital stock are parties to an agreement or voted in favor of the
restriction.
7.7 Dividends. Subject
to the provisions of the Certificate of Incorporation and of the General
Corporation Law, the Board may, from time to time, declare, and the Corporation
may pay, dividends and other distributions on the Corporation’s outstanding
shares of capital stock.
ARTICLE
8
INDEMNIFICATION
8.1 Indemnification
of Officers and Directors. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or an officer of the Corporation
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the fullest extent and in the manner set forth in
and permitted by the General Corporation Law, and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which such director or officer may be entitled
apart from the foregoing provisions. The foregoing provisions of this Section
8.1 shall be deemed to be a contract between the Corporation and each director
and officer who serves in such capacity at any time while this Article 8 and the
relevant provisions, of the General Corporation law and other applicable law, if
any, are in effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing, with respect to any state of facts then or
theretofore existing, or any action, suit or proceeding theretofore, or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
8.2 Indemnification
of Other Persons. The
Corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was an employee or agent of the Corporation, or is or
was, serving at the request of the Corporation, as a director,
officer,
employee
or agent of another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding to the extent and in the manner set forth
in and permitted by the General Corporation Law, and any other applicable law,
as from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which any such person may be entitled
apart from the foregoing provisions.
ARTICLE
9
BOOKS
AND RECORDS
9.1 Books
and Records.
The
Corporation shall keep correct and complete books and records of account and
shall keep minutes of the proceedings of the Stockholders, the Board and any
committee of the Board. The Corporation shall keep at the office designated in
the Certificate of Incorporation or at the Office of the Corporation or at the
office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all Stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 Form
of Records. Any
records maintained by the Corporation in the regular course of its business,
including its stock ledger, books of account, and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs, microphotographs,
computer databases, electronic servers or any other information storage device
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
9.3 Inspection
of Books and Records. Except
as otherwise provided by law, the Board shall determine from time to time
whether, and, if allowed, when and under what conditions and regulations, the
accounts, books, minutes and other records of the Corporation, or any of them,
shall be open to the inspection of the Stockholders.
ARTICLE
10
SEAL
The Board
may adopt a corporate seal which shall be in the form of a circle and shall bear
the full name of the Corporation, the year of its incorporation and the word
"Delaware".
ARTICLE
11
FISCAL
YEAR
The
fiscal year of the Corporation shall begin on the 1st day of January and shall
terminate on the 31st day of December in each year, or such other period as may
be fixed by resolution of the Board.
ARTICLE
12
VOTING
OF SHARES HELD
Unless
otherwise provided by resolution of the Board, the Chairman of the Board, or the
President, or any Vice President, may, from time to time, appoint one or more
attorneys 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
a stockholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of stock
or other securities of such other corporation, or to consent, in writing to any
action by any 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 on behalf of the Corporation and under its
corporate seal, or otherwise, such written proxies, consents, waivers or other
instruments as he may deem necessary or proper in the premises; or the Chairman
of the Board, or the President, or any Vice President may himself attend any
meeting of the holders of the stock or other securities of any such other
corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE
13
BUSINESS
COMBINATIONS WITH INTERESTED STOCKHOLDERS
Pursuant
to the provisions of Section 203 (b) (2) of the General Corporation Law, the
Corporation, by action of the Board, expressly elects not to be governed by
Section 203 of the General Corporation Law, dealing with business combinations
with interested Stockholders. Notwithstanding anything to the contrary in the
By-laws, the provisions of this Article 13 may not be further amended by the
Board, except as may be specifically authorized by the General Corporation
Law.
ARTICLE
14
AMENDMENTS
The
By-laws may be altered, amended, supplemented or repealed, or new By-laws may be
adopted, by vote of the holders of the shares entitled to vote in the election
of directors. The By-laws may be altered, amended, supplemented or repealed, or
new By-laws may be adopted, by the Board, provided that the vote of a majority
of the Whole Board shall be required to change the number of authorized
directors. Any By-laws adopted, altered, amended, or supplemented by the Board
may be altered, amended, supplemented or repealed by the Stockholders entitled
to vote thereon.