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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
July 13, 1997
Date of Report (Date of earliest event reported)
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WASTE MANAGEMENT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
1-7327 36-2660763
(Commission File Number) (IRS Employer
Identification No.)
3003 BUTTERFIELD ROAD, OAK BROOK, ILLINOIS 60523
(Address of principal executive offices) (Zip code)
(630) 572-8800
(Registrant's telephone number, including area code)
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Item 5. Other Events.
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On July 14, 1997, the registrant announced that its Board of Directors
elected Ronald T. LeMay, 51, as its Chairman, President and Chief Executive
Officer. The registrant also announced that Dean L. Buntrock had resigned as
Chairman and Chief Executive Officer, but remains a member of the registrant's
Board of Directors, which was expanded to 13 members with Mr. LeMay's election.
Mr. LeMay served as President and Chief Operating Officer of Sprint
Corporation ("Sprint") from February 1996 until his election as the registrant's
Chairman, President and Chief Executive Officer. Previously, Mr. LeMay served
briefly as Chief Executive Officer of Sprint Spectrum, a joint venture of
Sprint, Tele-Communications, Inc., Comcast Corporation and Cox Communications.
From October 1989 until March 1995, he was President and Chief Operating Officer
of Sprint Long Distance. Between July 1985 and October 1989, Mr. LeMay held
various senior management positions at United Telecommunications, whose name was
changed to Sprint in 1991. He was elected to Sprint's Board of Directors in
1993. Mr. LeMay also serves on the Boards of Directors of Ceridian Corporation,
Imation Corporation, Mercantile Bank of Kansas City and Yellow Corporation.
On July 13, 1997, the registrant amended its by-laws in connection with
these events. A copy of the amended and restated by-laws is filed as an exhibit
to this report.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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There are no financial statements or pro forma financial information
required to be filed as a part of this report. The exhibit filed as part of this
report is listed in the Exhibit Index hereto.
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WASTE MANAGEMENT, INC.
EXHIBIT INDEX
Number and Description of Exhibit*
----------------------------------
1. None
2. None
3. By-laws of registrant, as amended and restated as of July 13, 1997.
16. None
17. None
21. None
24. None
25. None
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* Exhibits not listed are inapplicable.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WASTE MANAGEMENT, INC.
By: /s/ Herbert A. Getz
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Herbert A. Getz
Senior Vice President
Dated: July 16, 1997
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EXHIBIT 3
WASTE MANAGEMENT, INC.
______________________
BY-LAWS
______________________
Amended and Restated as of: July 13, 1997
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ARTICLE I
OFFICES
Section 1. Delaware Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders for the
election of directors shall be held in the Village of Oak Brook, State of
Illinois, at such place as may be fixed from time to time by the board of
directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the board of directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be held
on the second Friday in May if not a legal holiday, and if a legal holiday, then
on the next business day following, at 10:00 a.m., or at such other date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which the stockholders shall elect
directors as provided in the restated certificate of incorporation, and transact
such other business as may properly be brought before the annual meeting (a) in
accordance with applicable statutes, (b) by or at the direction of the board of
directors or (c) by any stockholder (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 2 and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the
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procedures set forth in this Section 2. For business properly to be brought
before an annual meeting of stockholders by a stockholder pursuant to this
Section 2, the stockholder must have given timely notice thereof in proper
written form to the secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public announcement of the date of the annual meeting
was made, whichever first occurs. In no event shall the public announcement of
an adjournment or postponement of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. To be in proper
written form, a stockholder's notice to the secretary shall set forth in writing
as to each matter the stockholder proposes to bring before the annual meeting:
(i) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting; (ii)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business; (iii) the class and number of shares of
capital stock of the Corporation which are owned by the stockholder as of the
record date for the annual meeting; (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of the stockholder in such business; and
(v) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting. The
chairman of the annual meeting shall have the sole authority to determine
whether business was properly brought before the annual meeting in accordance
with the provisions of this Section 2 and, if the chairman should determine that
such business was not so properly brought, he or she shall so declare to the
annual meeting, and any such business not properly brought before the annual
meeting shall not be transacted. For purposes of this Section 2, "public
announcement" shall mean disclosure in a press release issued to one or more
national financial or general news services, including without limitation the
Dow Jones News Service or Associated Press, or in a document
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publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Section 3. Annual Meeting Notice. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than 60
days before the date of the meeting.
Section 4. Stockholder Meeting List. The secretary of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at 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 a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present for any purpose
germane to the meeting.
Section 5. Inspectors. The board of directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If any inspector or alternate so appointed shall be unwilling
or unable to serve, the chairman of the meeting shall appoint the necessary
inspector or inspectors. The inspectors so appointed, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspectors with strict impartiality and according to the best of their ability,
and the oath so taken shall be subscribed by them. Such inspectors shall: (a)
determine the number of shares of capital stock of the Corporation outstanding
and the voting power of each; (b) determine the shares represented at the
meeting, the existence of a quorum, and the validity of proxies and ballots; (c)
count and tabulate all votes and ballots; (d) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors; (e) certify their determination of the number
of shares represented at the meeting and their count of all votes and ballots;
and (f) do such acts as are proper to conduct the election or vote with fairness
to all
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stockholders. The date and time of the opening and closing of the polls for each
matter upon which stockholders will vote at a meeting shall be announced at the
meeting, and no ballots, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls. No director or candidate for the office of director shall act as an
inspector of election of directors. Inspectors need not be stockholders.
Section 6. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the restated
certificate of incorporation, may be called by the chairman of the board, the
president or the secretary or by resolution of the board of directors, subject
to the provisions of Article Sixth of the restated certificate of incorporation,
and shall be called by the chairman of the board, president or secretary at the
request in writing of a majority of the board of directors, subject to the
provisions of Article Sixth of the restated certificate of incorporation.
Section 7. Special Meeting Notice. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 8. Special Meeting Purpose. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 9. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
restated certificate of incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is
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for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 10. Voting. (a) When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question (other than the election of
directors) brought before such meeting, unless the question is one upon which by
express provision of the General Corporation Law of the State of Delaware or of
the restated certificate of incorporation, a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
(b) Each share of common stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the stockholders of the
Corporation, on all propositions before the meeting. No proxy shall be voted or
acted upon after three years from its date unless the proxy provides for a
longer period.
Section 11. Meeting Procedure. The chairman of any meeting of stockholders
shall have full and complete authority over matters of procedure and there shall
be no appeal from the ruling of the chairman. If disorder or any other event
should arise which prevents continuation of the legitimate business of the
meeting, the chairman may announce the adjournment of the meeting; and upon his
or her doing so, the meeting is immediately adjourned. The chairman may ask or
require anyone who is not a bona fide stockholder or holder of a valid proxy, or
who is disrupting or inhibiting the orderly conduct of the meeting, to leave the
meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number. The number of directors which shall constitute the whole
board shall be thirteen. Only directorships with terms expiring in any year (as
provided in Article Fifth of the
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restated certificate of incorporation) shall be filled at the annual meeting of
stockholders in that year. Directors shall be at least 21 years of age and need
not be stockholders.
Section 2. Election, Term and Vacancies. At each meeting of stockholders
for the election of directors at which a quorum is present, the persons
receiving a plurality of the votes cast shall be elected directors. Each
director shall serve until the annual meeting of stockholders for the year in
which his term expires and until his successor is duly elected and qualified,
subject, however, to his prior death, retirement, resignation or removal for
cause. Should a vacancy occur or be created, whether arising through death,
retirement, resignation or removal of a director for cause, or through an
increase in the number of directors of any class, such vacancy shall be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. A director so elected to fill a vacancy shall
serve for the then present term of office of the class of directors to which he
was elected. Subject to the provisions of Article IX of these by-laws, if there
are no directors in office, then an election may be held in the manner provided
by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. Nominations. Nominations for any election of a director may be
made by the board of directors, a committee appointed by the board or by any
stockholder entitled to vote generally in the election of directors (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 3 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the
procedures set forth in this Section 3. All nominations by stockholders must be
made pursuant to timely notice in proper written form to the secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual
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meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public announcement of the date of the annual meeting was made,
whichever first occurs. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period for
the giving of a stockholder's notice as described above. To be in proper written
form, such stockholder's notice shall set forth in writing (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is or would be required
to be disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; and (b) as to the stockholder giving the notice (i) the
name and address, as they appear on the Corporation's books, of such
stockholder, (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder, (iii) a description of all arrangements
or understandings between such stockholder and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (iv) a representation that
such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any other information relating
to such stockholder that is or would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder. Notwithstanding anything
in this Section 3 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 by the Corporation naming all of the nominees for
director or specifying the size of the increased board of directors at least
seventy (70) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 3 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 (10th) day following the day on which such public
announcement is first made by the
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Corporation. At the request of the board of directors, any person nominated by
the board, or a committee appointed by the board, for election as a director
shall furnish to the secretary of the Corporation the information required to be
set forth in a stockholder's notice of nomination which pertains to the nominee.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the procedures
prescribed by this Section 3, and the defective nomination shall thereupon be
disregarded. For purposes of this Section 3, "public announcement" shall mean
disclosure in a press release issued to one or more national financial or
general news services, including without limitation the Dow Jones News Service
or Associated Press, 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.
Section 4. Powers. The business of the Corporation shall be managed by its
board of directors which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the restated
certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
Section 5. Place of Meetings. The board of directors of the Corporation
and committees thereof may hold meetings, both regular and special, either
within or without the State of Delaware.
Section 6. Regular Meetings. Regular meetings of the board of directors
or any committee thereof may be held without notice at such time and at such
place as shall from time to time be determined by the board or such committee.
Section 7. Special Meetings. Special meetings of the board or committees
thereof may be called by the chairman of the board or, in the case of a
committee meeting, by the committee chairman on one day's notice to each
director, either personally or by mail, telegram, telex, or facsimile
transmission; special meetings of the board shall be called by the chairman of
the board or secretary in like manner and on one day's notice on the written
request of two directors.
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Section 8. Quorum. At all meetings of the board a majority of the
directors shall 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 restated certificate of
incorporation. 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.
Section 9. Written Consent. Unless otherwise restricted by the restated
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
Section 10. Telephonic Meetings. Unless otherwise restricted by the
restated certificate of incorporation, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 11. Committees. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee, provided, however, that in the event of the absence or
disqualification of any member and alternate member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member or alternate
member. Any such committee, to the extent provided in the
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resolution designating such committee and not limited by the General Corporation
Law of the State of Delaware, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors. A resolution passed by a majority of the
whole board which designates a committee or committees as provided above may be
amended or repealed only by a majority of the whole board. Unless its
authorizing resolution otherwise specifies, two members of a committee shall be
required to constitute a quorum, except that only one member shall be required
in the case of any committee having only one member.
Section 12. Committee Minutes. Each committee shall keep regular minutes
of its meetings and report the same to the board of directors when required.
Section 13. Compensation. The directors may be paid their expenses if
any, of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors, a stated
salary as director, or any combination thereof. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like expenses and compensation for attending committee meetings.
Section 14. Resignation. A resignation of a director shall be effective
upon receipt by the chairman of the board of a signed written notice of such
resignation, or, should such notice contain a specified date of resignation, at
such specified date. No acceptance by the board of directors is required for
such resignation to be effective.
ARTICLE IV
NOTICES
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Section 1. Form and Timing. Whenever any notice is required to be given
to any director or stockholder pursuant to the provisions of the General
Corporation Law of the State of Delaware, the restated certificate of
incorporation, these by-laws or the resolutions or other governing provisions of
a committee of the board of directors, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given on the second business day next following the day when the same shall be
deposited in the United States mail. Notice to a director may also be given by
telegram addressed to such director at such address, and such notice shall be
deemed to be given on the business day next following the day of the delivery of
such notice for transmission to such director. Notice to a director may also be
given by telex or facsimile transmission to such number as shall appear on the
records of the Corporation as the number of such director and shall be deemed to
be given on the day of transmission.
Section 2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the General Corporation Law of the State of Delaware,
the restated certificate of incorporation, these by-laws or the resolutions or
other governing provisions of a committee of the board of directors, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Attendance by a person at a meeting shall constitute a waiver of the
required 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.
ARTICLE V
OFFICERS
Section 1. Number and Qualifications. The officers of the Corporation
shall be chosen by the board of directors and shall be a chairman of the board,
a president, one or more vice presidents (the number and designation thereof to
be determined by the board of directors), a secretary, a treasurer, a
controller, a general counsel, and such assistant secretaries, assistant
treasurers or other officers, including, without limitation, one or more vice
chairmen of the board, as may be elected or
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appointed by the board of directors. Any number of offices may be held by the
same person, unless the restated certificate of incorporation or these by-laws
otherwise provide.
Section 2. Annual Election. The board of directors, at its meeting held
in conjunction with or after each annual meeting of stockholders, shall choose a
chairman of the board, a president, one or more vice presidents, a secretary, a
treasurer, a controller, a general counsel and may choose one or more vice
chairmen of the board, assistant officers or other officers as it may deem
advisable.
Section 3. Appointment of Other Officers. The board of directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board.
Section 4. Compensation. The salaries and other compensation of all
officers (other than assistant officers, unless the board otherwise determines)
and agents of the Corporation elected by the board shall be as fixed by the
board of directors.
Section 5. Term, Removal and Vacancies. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer or
agent elected or appointed by the board of directors may be removed at any time
by the affirmative vote of a majority of the whole board. Any vacancy occurring
in any office of the Corporation shall be filled by the board of directors.
Section 6. Chairman of the Board. The chairman of the board shall be the
chief executive officer of the Corporation, and shall preside at all meetings of
the stockholders and the board of directors. He or she may sign certificates for
shares of the Corporation and any deeds, mortgages, bonds, contracts or other
instruments which the board of directors has authorized to be executed, whether
or not under the seal of the Corporation, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors or by
these by-laws to some other officer or agent of the Corporation. He or she 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 are carried into
effect.
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Section 7. Vice Chairman (or Vice Chairmen) of the Board. In the absence
of the chairman of the board or in the event of his or her inability or refusal
to act, the vice chairman of the board, if any (or in the event there may be
more than one vice chairman of the board, the vice chairman of the board, in the
order designated, or in the absence of any designation, then in the order of
their election), shall perform the duties of the chairman of the board, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the chairman of the board. He or she may sign certificates for shares of
the Corporation and any deeds, mortgages, bonds, contracts, or other instruments
which the board of directors has authorized to be executed, whether or not under
the seal of the Corporation, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these by-
laws to some other officer or agent of the Corporation. The vice chairmen of the
board shall perform such other duties and have such other powers as the board of
directors or the chairman of the board may from time to time prescribe.
Section 8. President. The president may sign certificates for shares of
the Corporation and any deeds, mortgages, bonds, contracts or other instruments
which the board of directors has authorized to be executed, whether or not under
the seal of the Corporation, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these by-
laws to some other officer or agent of the Corporation. In the absence of the
chairman of the board and the vice chairman (or, if there by more than one, the
vice chairmen) of the board, or in the event of their inability or refusal to
act, the president shall perform the duties of the chairman of the board, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the chairman of the board. The president shall perform such
other duties and have such other powers as the board of directors or the
chairman of the board may from time to time prescribe.
Section 9. Vice Presidents. In the absence of the president or in the
event of his or her inability or refusal to act, the vice president (or in the
event there be more than one vice president, the vice presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and
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be subject to all the restrictions upon the president. A vice president who is
appointed as such with respect to a particular area of responsibility or
function of the Corporation shall, subject to the authority of the chairman and
the president, perform all duties and have all authority pertaining to the
general and active management of such area or function and shall see that all
orders and resolutions of the board of directors pertaining to such area or
function are carried into effect. The vice presidents shall perform such other
duties and have such other powers as the board of directors, the chairman of the
board or the president may from time to time prescribe.
Section 10. Secretary. The secretary shall: (a) keep the minutes of
stockholders, board of directors and board of directors committee meetings in
one or more books provided for the purpose; (b) see that all notices are duly
given in accordance with the provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the Corporation and
see that the seal of the Corporation is affixed to all documents, the execution
of which on behalf of the Corporation under its seal is necessary or desirable;
(d) keep or cause to be kept a register of the mailing address of each
stockholder which shall be furnished to the secretary or any transfer agent of
the Corporation by such stockholder; (e) have authority to sign with the
chairman of the board, a vice chairman of the board, the president, or a vice
president, certificates for shares of the Corporation, the issue of which shall
have been authorized by resolution of the board of directors; (f) have general
charge of the stock transfer books of the Corporation; (g) attest to the
genuineness of the signature on behalf of the Corporation of any officer or
agent of the Corporation on any deeds, mortgages, bonds, contracts or other
instruments; (h) certify the authenticity of any instrument or record of the
Corporation; and (i) in general perform all duties incident to the office of
secretary and such other duties as the board of directors, the chairman of the
board or the president may from time to time prescribe.
Section 11. Treasurer. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the board of directors shall
determine. He or she shall: (a) have charge and custody of and be responsible
for all funds and securities of the Corporation, and the deposit of all moneys
in the name of the Corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with resolutions of the board of
directors; (b) have authority to sign with the chairman of the board, a vice
chairman of the
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board, the president or a vice president, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the
board of directors; and (c) in general perform all the duties incident to the
office of treasurer and such other duties as the board of directors, the
chairman of the board or the president may from time to time prescribe.
Section 12. Controller. The controller shall be the principal accounting
officer of the Corporation and shall supervise the preparation and maintenance,
on a current basis, of such accounting books, records and reports as may be
necessary for directors, officers and employees of the Corporation to discharge
their duties or as may be required by law. In general he or she shall perform
all duties incident to the office of controller and other duties as the board of
directors, the chairman of the board or the president may from time to time
prescribe.
Section 13. General Counsel. The general counsel shall be the chief legal
adviser of the Corporation as to all matters affecting the Corporation or its
business. In general he or she shall perform all the duties incident to the
office of general counsel and such other duties as the board of directors, the
chairman of the board or the president may from time to time prescribe.
Section 14. Assistant Secretaries and Assistant Treasurers. The assistant
secretaries as thereunto authorized by the board of directors may sign with the
chairman of the board, a vice chairman of the board, the president, or a vice
president certificates for shares of the Corporation, the issue of which shall
have been authorized by a resolution of the board of directors, may attest to
the genuineness of the signature on behalf of the Corporation of any officer or
agent of the Corporation on any deeds, mortgages, bonds, contracts or other
instruments and may certify the authenticity of any instrument or record of the
Corporation. The assistant treasurers may sign with the chairman of the board, a
vice chairman of the board, the president or a vice president, certificates for
shares of the Corporation, the issue of which shall have been authorized by
resolution of the board of directors. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine. The assistant secretaries and assistant treasurers in
general shall perform such duties as from time to
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time may be prescribed by the secretary or the treasurer, respectively, or by
the board of directors, the chairman of the board or the president.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the chairman or a vice chairman of the board, the president or a vice
president, and by the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the Corporation, representing the number of shares
owned by him or her in the Corporation. The board of directors may by
resolution, subject to applicable provisions of the General Corporation Law of
the State of Delaware, determine that some or all of any or all classes or
series of stock shall be uncertificated shares.
Section 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 3. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificates to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his or
her legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation bond in such sum as it may direct as
indemnity or otherwise indemnify the Corporation against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
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Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and upon delivery to the Corporation or the transfer agent of the
Corporation of proper evidence of succession, assignment or authority to
transfer any uncertificated shares of the Corporation, it shall be the duty of
the Corporation to issue a new certificate to the person entitled thereto and
cancel the old certificate, if the shares are represented by a certificate, and
record the transaction upon its books.
Section 5. Record Dates. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 6. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, to vote as such owner and to receive notices in
respect of meetings of stockholders and other matters, and 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 otherwise provided by the General Corporation Law of
the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
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Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the restated certificate of
incorporation, if any, may be declared by the board of directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the restated
certificate of incorporation.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate or as may be
designated pursuant to procedures approved by the board of directors.
Section 4. Fiscal Year. The fiscal year of the Corporation begins on the
first day of January and ends on the last day of December in each calendar year.
Section 5. Seal. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed or otherwise reproduced.
Section 6. Indemnification. Each person who at any time is or shall have
been a director, officer or employee of the Corporation, or is or shall have
been serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise, and his or her heirs, executors and administrators, shall be
indemnified by the Corporation in accordance with and to the full extent
authorized by the General Corporation Law of the State of Delaware, as may be
amended from time to time. The foregoing right of indemnification
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shall not be deemed exclusive of other rights to which any director, officer,
employee, agent or other person may be entitled in any capacity as a matter of
law or under any by-law, agreement, vote of stockholders or directors, or
otherwise. The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, 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 any liability asserted against or
incurred by him or her in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power to indemnify him or
her against such liability under the provisions of this by-law or the General
Corporation Law of the State of Delaware.
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ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed, or new by-
laws may be adopted, by the stockholders or by the board of directors if such
business is properly brought before any regular meeting of the stockholders or
of the board of directors or at any special meeting of the stockholders or of
the board of directors if, in the case of a special meeting, notice of such
alteration, amendment, repeal or adoption of new by-laws is contained in the
notice of such special meeting.
ARTICLE IX
EMERGENCY BY-LAWS
Section 1. Emergency Management Committee. The board of directors, by
resolution, may provide for an Emergency Management Committee and appoint or
designate the manner in which membership of the Committee shall be determined.
To the extent provided in said resolution, such Committee shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the Corporation, and shall thereby be deemed to constitute the
board of directors of the Corporation, only during any interval commencing when
the board of directors shall be unable to function by reason of vacancies
occurring due to death, incapacity or catastrophe or other similar emergency
condition and there shall be no member or members of the board remaining and
able to fill such vacancies pursuant to Section 2 of Article III hereof and
terminating when a board of directors has been elected by the stockholders of
the Corporation and shall have been duly qualified. Notwithstanding the
foregoing, such Committee shall, during the time it is authorized to function as
provided herein, have the power to appoint such temporary officers to fill
existing vacancies as the circumstances may require and to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Section 2. Meetings, Quorum and Vacancies. The Emergency Management
Committee shall meet as promptly as possible after the occurrence of the event
herein described which would activate the Committee and at such subsequent time
or times as it may designate until a board of directors
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has been duly elected by the stockholders and qualified. Such Committee shall
make its own rules of procedure except to the extent otherwise provided by
resolution of the board. A majority of the Committee shall constitute a quorum.
Any vacancy occurring in said Committee caused by resignation, death or other
incapacity shall be filled by a majority of the remaining members of the
Committee and any member so chosen shall serve until a board of directors has
been duly elected by the stockholders and qualified.
Section 3. Powers of Chairman. During such times as the Emergency
Management Committee shall be required to function pursuant to the provisions
hereof, the chairman of said Committee shall function as and have the powers of
the chief executive officer of the Corporation and shall preside at all meetings
of the stockholders and the Emergency Management Committee. The chairman of the
Emergency Management Committee shall have and exercise, subject to the direction
of the Emergency Management Committee, general charge and supervision over the
business and affairs of the Corporation.
Section 4. Other By-Law Provisions. To the extent not inconsistent with the
provisions of this Article IX, all other provisions of these by-laws shall
remain in effect during the interval in which the Emergency Management Committee
shall be required to function pursuant to the provisions hereof.
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