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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
Date of Report (Date of earliest event reported): November 18, 1999
The Williams Companies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-4174 73-0569878
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
One Williams Center, Tulsa, Oklahoma 74172
(Address of principal executive offices (Zip Code)
Registrant's telephone number, including area code: 918-573-2000
Not Applicable
(Former name or former address, if changed since last report)
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Item 5. Other Events.
The board of directors of The Williams Companies, Inc. (the
"Company") has adopted amendments to the Company's By-laws to provide for a
requirement of advance notice for proposing business at a meeting of
stockholders and for the nomination of a director at a meeting of stockholders.
Item 7. Exhibits.
The Company files the following exhibit as part of this report:
Exhibit 99.1 Copy of the Company's By-laws, as amended, effective
November 18, 1999.
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 hereunto duly authorized.
THE WILLIAMS COMPANIES, INC.
/s/ SHAWNA L. GEHRES
------------------------------------
Name: Shawna L. Gehres
Title: Secretary
Date: January 18, 2000
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
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<S> <C>
99.1 Copy of the Company's By-laws, as amended, effective
November 18, 1999.
</TABLE>
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Effective 11/18/99
EXHIBIT 99.1
BY-LAWS
OF
THE WILLIAMS COMPANIES, INC.
(hereinafter called the "Company")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Company shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Company 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of Directors or for any other purpose shall be held at such time
and 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 or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of the
Stockholders shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meetings, at which meetings the stockholders shall elect by a plurality vote the
Directors to be elected at such meetings, and transact such other business as
may properly be brought before the meetings. 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
sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by
law or by the Restated Certificate of Incorporation, Special Meetings of
Stockholders, for any purpose or purposes, may be called by either the Chairman
of the Board, if one has been elected, or the President, and shall be called by
either such officer or the Secretary at the request in writing of (i) a majority
of the Board of Directors, or (ii) the stockholders owning of record at least a
majority in number of the issued and outstanding shares of stock of the Company
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. 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 sixty days before the date
of the meeting to each stockholder entitled to vote at such meeting.
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Section 4. Quorum. Except as otherwise provided by law or by
the Restated Certificate of Incorporation, the holders of a majority of the
capital 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. If, however, such quorum shall not
be present or represented by proxy 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 by proxy, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a written notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
Section 5. Voting. At each meeting of stockholders held for
any purpose, each stockholder of record of Common Stock entitled to vote thereat
shall be entitled to one vote for every share of such stock standing in such
stockholder's name on the books of the Company on the date determined in
accordance with Section 5 of Article V of these By-laws, and each stockholder of
record of Preferred Stock entitled to vote thereat shall be entitled to the vote
as set forth in the resolution or resolutions of the Board of Directors
providing for such series for each share of Preferred Stock standing in such
stockholder's name on the books of the Company on the date determined in
accordance with Section 5 of Article V of these By-laws. On any matter on which
the holders of the Preferred Stock or any series thereof shall be entitled to
vote separately as a class or series, they shall be entitled to one vote for
each share held.
Each stockholder entitled to vote at any meeting of
stockholders may authorize not in excess of three persons to act for such
stockholder by a proxy signed by such stockholder or such stockholder's
attorney-in-fact. Any such proxy shall be delivered to the secretary of such
meeting at or prior to the time designated for holding such meeting, but in any
event not later than the time designated in the order of business for so
delivering such proxies. No such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Except as
otherwise provided by law or by the Restated Certificate of Incorporation, at
each meeting of the stockholders, all corporate actions to be taken by vote of
the stockholders shall be authorized by a majority of the votes cast by the
stockholders entitled to vote thereon, present in person or represented by
proxy, and where a separate vote by class is required, a majority of the votes
cast by the stockholders of such class, present in person or represented by
proxy, shall be the act of such class.
Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
Directors, need not be by written ballot. In the case of a vote by written
ballot, each ballot shall be signed by the stockholder voting, or by such
stockholder's proxy, and shall state the number of shares voted.
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Section 6. List of Stockholders Entitled to Vote. The officer
of the Company who has charge of the stock ledger of the Company 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 or person representing a stockholder by
proxy, 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 of the Company who is present.
Section 7. Stock Ledger. The stock ledger of the Company shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 6 of this Article II or the books of
the Company, or to vote in person or by proxy at any meeting of stockholders.
Section 8. Nature of Business at Meetings of Stockholders. No
business may be transacted at an Annual Meeting of Stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any Stockholder of the Company (i) who is a Stockholder of
record on the date of the giving of the notice provided for in this Section 8
and on the record date for the determination of Stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this Section 8.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a Stockholder, such
Stockholder must have given timely notice thereof in proper written form to the
Secretary of the Company.
To be timely, a Stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company not less than ninety (90) days nor more than one hundred and 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 disclosure of the date of the Annual Meeting was made,
whichever first occurs.
To be in proper written form, a Stockholder's notice to the
Secretary must set forth as to each matter such Stockholder proposes to bring
before the Annual Meeting (i) a brief
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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 record address of such Stockholder, (iii) the class or series and number of
shares of capital stock of the Company which are owned beneficially or of record
by such Stockholder, (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 such 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.
No business shall be conducted at the Annual meeting of
Stockholders except business brought before the Annual Meeting in accordance
with the procedures set forth in this Section 8; provided, however, that, once
business has been properly brought before the Annual Meeting in accordance with
such procedures, nothing in this Section 8 shall be deemed to preclude
discussion by any Stockholder of any such business. If the Chairman of an Annual
Meeting determines that business was not properly brought before the Annual
Meeting in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number, Nomination, and Election of Directors. The
number of Directors constituting the Board of Directors shall be no more than
seventeen nor less than five, the precise number within such limitations to be
fixed by resolution of the Board of Directors from time to time. Except as
provided in Section 2 of this Article III, the Directors to be elected at each
Annual Meeting of Stockholders shall be elected by a plurality of the votes cast
at such Annual Meeting of Stockholders, and each Director so elected shall hold
office until the third Annual Meeting of Stockholders following such election
and until a successor is duly elected and qualified, or until earlier
resignation or removal. Any Director may resign at any time upon notice to the
Company. Directors need not be stockholders.
Notwithstanding the foregoing, whenever the holders of any
Preferred Stock, as may at any time be provided in the Restated Certificate of
Incorporation or in any resolution or resolutions of the Board of Directors
establishing any such Preferred Stock, shall have the right, voting as a class
or as classes, to elect Directors at any Annual or Special Meeting of
Stockholders, the then authorized number of Directors of the Company may be
increased by such number as may therein be provided, and at such meeting the
holders of such Preferred Stock shall be entitled to elect the additional
Directors as therein provided. Any Directors so elected, unless so reelected at
the Annual Meeting of Stockholders or Special Meeting held in place thereof,
next succeeding the time when the holders of any such Preferred Stock became
entitled to elect Directors as above provided, shall not hold office beyond such
Annual or Special Meeting. Any such provision for election of Directors by
holders of the Preferred Stock shall apply notwithstanding the maximum number of
Directors set forth in the provisions hereinabove.
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Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors of the Company,
except as may be otherwise provided in the Restated Certificate of Incorporation
with respect to the right of holders of preferred stock of the Company to
nominate and elect a specified number of Directors in certain circumstances.
Nominations of persons for election to the Board of Directors may be made at any
Annual Meeting of Stockholders, or at any Special Meeting of Stockholders called
for the purpose of electing Directors, (a) by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (b) by any
Stockholder of the Company (i) who is a Stockholder of record on the date of the
giving of the notice provided for in this Section 9 and on the record date for
the determination of Stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 9.
In addition to any other applicable requirements, for a
nomination to be made by a Stockholder, such Stockholder must have given timely
notice thereof in proper written form to the Secretary of the Company.
To be timely, a Stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company (a) in the case of an Annual Meeting, not less than ninety (90) days nor
more than one hundred and twenty (120) days prior to the anniversary date of the
immediately preceding Annual Meeting of Stockholders; provide 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 disclosure of the date of the Annual
Meeting was made, whichever first occurs; and (b) in the case of a Special
Meeting of Stockholders called for the purpose of electing Directors, not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the Special meeting was mailed or public disclosure of the
date of the Special meeting was made, whichever first occurs.
To be in proper written form, a Stockholder's notice to the
Secretary must set forth (a) as to each person whom the Stockholder proposes to
nominate for election as a Director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Company which are owned beneficially or of record by the person and (iv) any
other information relating to the person that 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
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the Stockholder giving the
notice (i) the name and record address of such Stockholder, (ii) the class or
series and number of shares of capital stock of the Company which are owned
beneficially or of record by such Stockholder, (iii) a description of all
arrangements or understandings between such Stockholder and each proposed
nominee and
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any other person or persons (including their names) pursuant to which the
nominations 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 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. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a Director if elected.
No person shall be eligible for election as a Director of the
Company unless nominated in accordance with the procedures set forth in this
Section 9. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
Section 2. Vacancies. Subject to the provisions of the
Restated Certificate of Incorporation, vacancies and newly created directorships
resulting from any increase in the authorized number of Directors may be filled
by a majority of the Directors then in office, though less than a quorum, or by
a sole remaining Director, and the Directors so chosen shall hold office for a
term that shall coincide with the unexpired portion of the term of that
directorship, and until their successors are duly elected and qualified, or
until their earlier resignation or removal.
Section 3. Duties and Powers. The business of the Company
shall be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Company 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 4. Meetings. The Board of Directors of the Company may
hold meetings, both regular and special, within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board, if one has been elected, or by the President or any
three Directors. Notice thereof stating the place, date and hour of the meeting
shall be given to each Director either by mail not less than forty-eight (48)
hours before the date of the meeting, by telephone or telegram on twenty-four
(24) hours notice, or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically
provided by law, the Restated Certificate of Incorporation or these By-laws, at
all meetings of the Board of Directors, a majority of the entire Board of
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. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of 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.
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Section 6. Actions of the Board. Unless otherwise provided 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 the members of the
Board of Directors or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of the proceedings of the
Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Restated Certificate of Incorporation or these
By-laws, 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
such committee by means of a conference telephone or similar 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 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may designate
one or more committees, each committee to consist of one or more of the
Directors. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any such committee, to the extent provided in
the resolution of the Board of Directors, or in the By-laws of the Company,
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 Company, and may
authorize the seal of the Company to be affixed to all papers which may require
it; but no such committee shall have the power or authority in reference to the
following matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by Delaware law to be
submitted to stockholders for approval; or (ii) adopting, amending or repealing
any By-law of the Company. Each committee shall keep regular minutes and report
to the Board of Directors when required.
Section 9. Compensation. The Directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
such compensation for serving as a Director and attending each meeting of the
Board of Directors as may be fixed from time to time by resolution of the Board.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may also be paid such compensation for committee service or
for attending committee meetings as the Board may establish from time to time.
Section 10. Retirement Policy. The normal retirement date for
a Director shall be at the first Annual Meeting of Stockholders of the Company
following the Director's 72nd birthday, and except as provided in this Section
10, no one shall serve as a Director beyond this normal
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retirement date. A Director may be nominated (and elected) to serve as a
Director after the normal retirement date provided that: (i) the Director
expresses to the Board of Directors a willingness to serve as a Director after
the normal retirement date; (ii) at the time of being a nominee for a term of
office that would extend beyond the normal retirement date, such person was a
Director and was so elected by the stockholders of the Company; (iii) the
Director's nomination as a nominee for the term extending beyond the normal
retirement date was by majority vote of all Directors then in office; (iv) the
stockholders of the Company were advised fully regarding the Director's intent
to serve on the Board after the normal retirement date; and (v) the Director was
thereafter elected a Director by the stockholders in accordance with the
Restated Certificate of Incorporation and By-laws of the Company. Nothing herein
shall be construed to create a right of any Director to be nominated for
reelection to the Board or as a limitation upon the right of the Board of
Directors not to nominate any Director for such reelection.
ARTICLE IV
OFFICERS
Section 1. General. The officers shall be elected by the Board
of Directors and shall include a President, a Secretary and a Treasurer and, at
the discretion of the Board of Directors, may include a Chairman of the Board,
one or more Vice Presidents and such other officers as the Board of Directors
may from time to time deem necessary or appropriate. Any number of offices may
be held by the same person, unless otherwise prohibited by law, the Restated
Certificate of Incorporation or these By-laws. The officers need not be
stockholders nor, except in the case of the Chairman of the Board, need such
officers be Directors.
Section 2. Election. The Board of Directors shall elect the
officers of the Company who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers shall hold office until their
successors are chosen and qualified, or until their death, resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office shall be filled by the Board of Directors.
Section 3. Voting Securities Owned by the Company. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Company may be executed in the name of and
on behalf of the Company by the Chief Executive Officer, any Vice President or
the Secretary, and any such officer may in the name of and on behalf of the
Company, take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation in
which the Company may own securities and at any such meeting shall possess
ownership of such securities and which, as the owner thereof, the Company might
have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or
persons.
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Section 4. Chief Executive Officer. If no Chairman of the
Board has been elected, the President shall be the Chief Executive Officer. If a
person has been elected as both Chairman of the Board and President, that person
shall be the Chief Executive Officer. Otherwise, if a Chairman of the Board has
been elected, the Board of Directors shall designate either the Chairman of the
Board or the President as Chief Executive Officer. Subject to the directions of
the Board of Directors or any duly authorized committee of Directors, the Chief
Executive Officer shall direct the policy of the Company and shall have general
direction of the Company's business, affairs and property and over its several
officers, in addition to his duties set forth in Section 5 or 6 of this Article
IV, as the case may be.
Section 5. Chairman of the Board. If one has been elected, the
Chairman of the Board shall, if present, preside at all meetings of the Board of
Directors and of the stockholders. The Chairman of the Board may, with the
Treasurer or the Secretary, or an Assistant Treasurer or an Assistant Secretary,
sign certificates for stock of the Company and any other documents, of whatever
nature, in the name of the Company, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by a
duly authorized committee of Directors, or by these By-laws to some other
officer or agent of the Company, or shall be required by law otherwise to be
signed or executed and shall perform such other duties as may from time to time
be assigned by the Board of Directors or by any duly authorized committee of
Directors.
Section 6. President. The President, unless he is serving as
Chief Executive Officer, shall be responsible to the Chairman of the Board.
During the absence or disability of the Chairman of the Board, or if one shall
not have been elected, the President shall exercise all the powers and discharge
all the duties of the Chairman of the Board. The President may, with the
Treasurer or the Secretary, or an Assistant Treasurer or an Assistant Secretary,
sign certificates for stock of the Company and any other documents, of whatever
nature, in the name of the Company, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by a
duly authorized committee of Directors, or by these By-laws, to some other
officer or agent of the Company, or shall be required by law otherwise to be
signed or executed and shall perform such other duties as may from time to time
be assigned by the Board of Directors or by any duly authorized committee of
Directors.
Section 7. Vice Presidents. In the absence of the President or
in the event of inability or refusal of the President to perform the duties of
his office, the Vice Presidents, if any have been elected, in the order
designated by the Board of Directors or, in the absence of such designation, in
the order of seniority in office, shall perform the duties and possess the
authority and powers of the President. Any Vice President may also sign and
execute in the name of the Company deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by a duly authorized committee
of Directors, or by these By-laws, to some other officer or agent of the
Company, or shall be required by law otherwise to be signed or executed. Each
Vice President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe.
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Section 8. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all of the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform, or cause to be performed, like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer. If the Secretary shall be
unable or shall refuse to cause notice to be given of all meetings of the
stockholders and special meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors, the Chairman of the
Board, if one has been elected, or the President may choose another officer to
cause such notice to be given. The Secretary shall have custody of the seal of
the Company and the Secretary or any Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Company and to
attest the affixing by such officers a signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
Section 9. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Company as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all transactions of the Treasurer and of the
financial condition of the Company.
Section 10. Assistant Secretaries. Except as may be otherwise
provided in these By-laws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chief Executive Officer, any Vice President or the
Secretary, and in the absence of the Secretary or in the event of the disability
or refusal of the Secretary to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the Chief Executive
Officer, any Vice President or the Treasurer, and in the absence of the
Treasurer or in the event of the disability or refusal to act of the Treasurer,
shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer.
Section 12. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors.
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ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Company shall be entitled to have a certificate signed in the name of the
Company (i) by the Chairman of the Board, if one has been elected, or the
President; and (ii) by the Secretary or an Assistant Secretary of the Company,
certifying the number of shares owned.
Section 2. Signatures. Where a certificate is countersigned by
(i) a transfer agent other than the Company or its employee, or (ii) a registrar
other than the Company or its employee, any other signature on the 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, the certificate may be issued by the Company with the
same effect as if such officer or entity were an officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the Company alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, 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 such owner's legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Company a bond in such sum as it may direct as indemnity against any claim that
may be made against the Company and its transfer agents and registrars with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Company shall be
transferable in the manner prescribed by law and in these By-laws. Transfers of
stock shall be made on the books of the Company only by the person named in the
certificate or by such person's attorney lawfully constituted in writing and
filed with the Secretary of the Company, or a transfer agent for such stock, if
any, and upon the surrender of the certificate therefor, which shall be canceled
before a new certificate shall be issued.
Section 5. Record Date. In order that the Company 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 days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action for which a record date is required. 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.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Restated Certificate of Incorporation or these By-laws, to be given to
any Director, member of a committee or stockholder, such notice may be given by
mail, addressed to such Director, member of a committee or stockholder, at such
address as appears on the records of the Company, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required
by law, the Restated Certificate of Incorporation or these By-laws, to be given
to any Director, member of a committee or stockholder, 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Company, 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, and may be paid in cash, in property or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any funds of the
Company available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as a reserve or reserves
to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Company, or for any proper purpose, and the
Board of Directors may modify or abolish any such reserve.
Section 2. Fiscal Year. The fiscal year of the Company shall
be fixed by resolution of the Board of Directors.
Section 3. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Company, 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, reproduced or otherwise.
Section 4. By-laws Subject to Law and Restated Certificate of
Incorporation of the Company. Each provision of these By-laws is subject to any
contrary provision of the Restated Certificate of Incorporation of the Company
or of an applicable law as from time to time in effect, and to the extent any
such provision is inconsistent therewith, such provision shall be superseded
thereby for as long as such inconsistency shall exist, but for all other
purposes these By-laws shall continue in full force and effect.
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ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
Other Than Those by or in the Right of the Company. Subject to Section 3 of this
Article VIII, the Company 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
(other than an action by or in the right of the Company) by reason of the fact
that such person is or was a Director, officer, employee or agent of the
Company, or is or was serving at the request of the Company 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
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Company. Subject to Section 3 of this Article VIII,
the Company 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 or suit by or in
the right of the Company to procure a judgment in its favor by reason of the
fact that such person is or was a Director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company; except that no indemnification shall be made in respect to any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the State
of Delaware or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Company only as authorized in the specific case
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upon a determination that indemnification of the Director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as
the case may be. Such determination shall be made (i) by the Board of Directors
by a majority vote of a quorum consisting of Directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders. To
the extent, however, that a Director, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection therewith, without the necessity
of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe such
person's conduct was unlawful, if such person's action is based on the records
or books of account of the Company or another enterprise, or on information
supplied to such person by the officers of the Company or another enterprise in
the course of their duties, or on the advice of legal counsel for the Company or
another enterprise or on information or records given or reports made to the
Company or another enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company or
another enterprise. The term "another enterprise" as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust or
other enterprise of which such person is or was serving at the request of the
Company as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections l or 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
Director, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standards of conduct
set forth in Sections 1 and 2 of this Article VIII, as the case may be. Notice
of any application for indemnification pursuant to this Section 5 shall be given
to the Company promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses by an officer
or Director incurred in defending a civil or criminal action, suit or proceeding
may be paid by the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
Director or officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Company as authorized
in this Article VIII.
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Such expenses incurred by other employees and agents shall be
so paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
Section 7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any By-law, agreement, contract, vote of stockholders or
disinterested Directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, it being the policy of the Company that indemnification of the persons
specified in Sections 1 and 2 of this Article VIII shall be made to the fullest
extent permitted by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not specified in Sections 1
or 2 of this Article VIII but whom the Company has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware or otherwise.
Section 8. Insurance. The Company may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Company would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article VIII.
Section 9. Meaning of "Company" and "Other Enterprises" for
the Purposes of Article VIII.
A. For purposes of this Article VIII, references to "the
Company" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VIII with respect to
the resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
B. For purposes of this Article VIII, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a Director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such Director, officer,
employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith
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and in a manner such person reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE IX
AMENDMENTS
Section 1. Amendments of By-laws. These By-laws may be
altered, amended, supplemented or repealed and new By-laws may be adopted by the
stockholders entitled to vote at any duly constituted Annual or Special Meeting
of Stockholders, and, except as otherwise expressly provided in a By-law made by
the stockholders, by the Board of Directors at any duly constituted regular or
special meeting thereof; provided that no amendment of these By-laws changing
the place named therein for the annual election of Directors shall be made
within sixty days next before the day on which any such election is to be held.
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