SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 1, 1995
Date of earliest event reported: November 29, 1995
New Jersey Resources Corporation
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(Exact name of registrant as specified in its charter)
New Jersey 1-8359 22-2376465
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(State of (Commission File Number) (IRS Employer
incorporation) Identification No.)
1415 Wyckoff Road, Wall, New Jersey 07719
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(Address of principal executive offices) (Zip Code)
(908) 938-1480
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(Registrant's telephone number, including area code)
Page 1 of 4
Exhibit index on page 4
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ITEM 5. OTHER EVENTS
Amendment of By-laws.
The Registrant's Board of Directors in November 1995 amended the By-laws of
the Registrant to clarify certain provisions and to provide additional
procedural flexibility to the Board.
Section 1 of Article I and Section 1 of Article III were amended to
establish the procedures to be followed in order for business to be brought
before an annual meeting of stockholders. These provisions require, among other
things, that notice be given to the Registrant, a specified period of time
before an annual meeting, of the nomination by a stockholder of any person for
election to the Board of Directors and of any other business that a stockholder
desires to be brought before the meeting. Information about the stockholder, the
stockholder's nominees to the Board, if any, and the nature of any other
proposals by such stockholder must be included in the stockholder's notice.
In addition, Section 3 of Article III was amended to allow the Board to
postpone any previously scheduled annual or special meeting of stockholders and
to permit the officer presiding at any such meeting to direct the date and time
for the opening and closing of the polls at such meeting.
The foregoing description of the amendments is qualified in its entirety by
reference to the full text of the amended By-laws of the Registrant, a copy of
which is attached hereto as Exhibit 5.1 and is incorporated herein by reference.
ITEM 7. EXHIBITS
5.1. Copy of By-laws of Registrant, as amended on November 29, 1995 and
presently in effect.
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SIGNATURE
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.
NEW JERSEY RESOURCES CORPORATION
(Registrant)
By /s/ LAURENCE M. DOWNES
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Laurence M. Downes
President and
Chief Executive Officer
DATE: December 1, 1995
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EXHIBIT INDEX
Exhibit No. Description Page No.
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5.1. Copy of By-laws of Registrant, as amended on
November 29, 1995 and presently in effect.
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NEW JERSEY RESOURCES CORPORATION
BY-LAWS
Adopted November 20, 1981
Amended November 19, 1982
Amended December 8, 1983
Amended January 29, 1986
Amended and Adopted December 17, 1986
Amended January 27, 1988
Amended November 29, 1995
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ARTICLE I
BOARD OF DIRECTORS
Section 1 - ELECTION. The business and affairs of the Company shall be
conducted under the direction of its Board of Directors, which shall have all
the powers of the Company except such as are by statute, by the Certificate of
Incorporation, or by these By-Laws conferred upon or reserved to the
stockholders. The number of directors constituting the entire Board of Directors
shall not be less than three, the exact number to be determined from time to
time by resolution adopted by the affirmative vote of a majority of the entire
Board of Directors, each director to hold office until his successor shall have
been elected and qualified. The members of the Board of Directors shall be
divided into classes in the manner provided by Paragraph 7 of the Corporation's
Certificate of Incorporation and shall be elected and serve for such terms of
office as are provided therein.
Nominations of persons for election as directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Any stockholder entitled to vote for the election of directors may
nominate a person or persons for election as director only if written notice of
such stockholder's intent is delivered to the Secretary of the Company at the
principal executive offices of the Company (i) with respect to an election to be
held at an annual meeting of stockholders, not later than 75 days prior to the
first anniversary of the preceding year's annual meeting, or as set out below,
and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, not later than 10 days following the
date on which public announcement (as defined in Article III, Section 1 of these
By-Laws) of the date of such meeting is first made. In the event that the date
of the annual meeting is advanced by more than 30 days or delayed by more than
60 days from the anniversary date of the annual meeting, notice by the
stockholder must be delivered not later than 75 days prior to such annual
meeting, or, if the date of the annual meeting is less than 75 days from the
date on which public announcement of the date of such meeting is first made, not
later than or the 10th day following the day on which public announcement of the
date of such meeting is first made. Notwithstanding anything in the foregoing
sentence to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Company is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Company at least 85
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days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 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 of the Company not later
than the close of business on the 10th day following the day on which such
public announcement is first made.
Such stockholder's notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and the name, address, age, and
principal occupation or employment of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock of the
Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice;
(c) the number and class of shares of the Company which are owned by such
stockholder and the beneficial owner, if any, and the number and class of
shares, if any, beneficially owned by the nominee; (d) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (e) such other
information regarding each nominee that is required to be disclosed in
connection with the solicitation of proxies for the election of directors, or as
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including, without
limitation, such person's written consent to being named in a proxy statement as
a nominee and to serving as a director if nominated). The Chairman of the Board
or other person presiding at a meeting of stockholders, may refuse to
acknowledge the nomination of any person not made in accordance with the
procedures prescribed by these By-Laws, and in that event the defective
nomination shall be disregarded.
Subject to limits, if any, contained in the Certificate of Incorporation,
the Board of Directors shall be authorized at any time to increase the number of
directors and to elect a new director to fill any such newly created
directorship, by resolution adopted by the affirmative vote of the majority of
the directors then in office. Any such new director shall hold office until the
next annual meeting of stockholders and until his successor is elected.
If the office of any director becomes vacant for any reason, any such
vacancy shall be filled by the Board of Directors, by resolution adopted by the
affirmative vote of the majority of the
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remaining directors then in office. Any such new director shall hold office for
the unexpired term and until his successor is elected. The stockholders may fill
a directorship resulting from a vacancy or from an increase in the number of
directors only if the Board of Directors shall not have done so.
The Board of Directors shall be authorized at any time by resolution to
increase the number of directors and, by a majority vote, to elect a new
director to fill any such newly created directorship. Any such new director
shall hold office until the next Annual Stockholders' Meeting and until his
successor is elected.
A director, or the entire Board of Directors may be removed only for cause
and only by the affirmative vote of the holders of at least 80% of the voting
power of the voting stock.
Section 2 - BOARD Of DIRECTORS MEETINGS. As soon as practicable, after the
Annual Meeting of Stockholders, the Board of Directors shall meet for
organization and elect a Chairman, who shall not ex officio be deemed an officer
or employee of the Company unless expressly so designated by the Board as the
Chief Executive Officer of the Company. The Chairman shall preside at all
meetings of the Board of Directors. The Board of Directors may also elect a Vice
Chairman, who shall not ex officio be deemed an officer or employee of the
Company, but who shall preside at any meeting of the Board of Directors in the
absence of the Chairman.
Regular meetings of the Board of Directors shall be held in alternate
months on the last Wednesday of each month unless otherwise determined by
resolution of the Board. The time and place of each meeting shall be designated
by resolution of the Board, Chairman, the President, or the Secretary in the
notice of meeting.
Special meetings of the Board of Directors may be called at any time by the
Chairman or the President. The Secretary shall also call such meeting on the
written request of a majority of the directors.
No notice shall be required for regular meetings of the Board of Directors,
provided the time and place shall have been previously fixed by resolution of
the Board. The meeting for organization may be held on the day of and after the
annual meeting of stockholders. Two days notice of a special meeting of the
Board of Directors shall be given, but this notice may be
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waived at any time in writing or by telegraph. A meeting may be held at any
time without notice when all directors are present and consent thereto. The
Board of Directors may also act without a meeting by unanimous written consent
which shall be filed with the minutes of the Board.
At all meetings of the Board of Directors, the presence in person or by
telephonic conference call of a majority of directors shall constitute a quorum
for the transaction of business. A lesser number than a quorum, however, may
meet and adjourn to any day.
Section 3 - REMUNERATION. Directors, other than Company Officers, shall
receive remuneration in such amount as shall be fixed by the Board of Directors
from time to time.
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ARTICLE II
OFFICERS
Section 1 - APPOINTMENT. The Board of Directors shall, as soon as
practicable after the Annual Meeting, meet for organization and shall elect or
appoint a president; such number of Vice Presidents as the Board may direct;
Treasurer; and a Secretary, any of whom may but need not be a director, except
that the officer designated as the Chief Executive Officer as provided herein
must be one of the directors.
The Board of Directors shall further designate either the Chairman of the
Board, or the President, as the Chief Executive Officer of the Company. In the
event that the Chairman of the Board is designated by the Board of Directors as
the Chief Executive Officer, the president shall be the Chief Operating Officer
of the Company. In the event that the President is designated as the Chief
Executive Officer, the Board may, in its discretion, designate a Vice President
as the Chief Operating Officer. The Board of Directors shall further designate
an officer as the Chief Financial Officer of the Company.
The Board of Directors may also elect or appoint one or more Assistant Vice
Presidents, Assistant Treasurers, Assistant Secretaries, and such other officers
as the Board shall from time to time deem necessary, who shall have such
authority and shall perform such duties as may be prescribed in these By-Laws or
by the Board of Directors.
Any two or more offices may be held by the same person. All of said
officers shall hold their offices at the pleasure of the Board.
Section 2 - CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
preside at all meetings of the stockholders and shall have, under the direction
of the Board of Directors, overall executive responsibility for the supervision,
management, and control of the business of the Company and of all departments of
the Company's operations; he shall sign all certificates of stock and all
contracts and other instruments in the name of the Company, unless otherwise
ordered by the Board; and shall have the authority and responsibility to do and
perform all other duties as provided by law, by these By-Laws, or which are
otherwise incidental to his office.
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Section 3 - CHIEF OPERATING OFFICER. The Chief Operating Officer, if there
be any such officer so designated, shall have general responsibility for the
operation and administration of the business of the Company subject to the
direction and control of the Chief Executive Officer and of the Board of
Directors. He shall perform such other duties as may be delegated or assigned to
him by the Chief Executive Officer, or by the Board of Directors, and in the
absence of the Chief Executive Officer, the Chief Operating Officer shall
perform the duties of the Chief Executive Officer, and the performance of any
such duty by the Chief Operating Officer shall be conclusive evidence of his
right to act.
Section 4 - CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have
overall responsibility for the preparation and maintenance of the Company's
financial books and records, for the accuracy and integrity of all reports of
the Company's financial condition which are prepared or issued under his
authority, and for the financial affairs; and requirements of the Company. Upon
request, he shall make a report of the financial condition of the Company to the
Board of Directors or to the Chief Executive Officer, and shall perform such
other duties as may be delegated or assigned to him by the Board of Directors or
by the Chief Executive Officer.
Section 5 - VICE PRESIDENTS. Each Vice President shall have such powers and
shall perform such duties as may be delegated or assigned to him by the Board of
Directors, by the Chief Executive Officer (if other than the President), by the
President, or by the Chief Operating Officer (if other than the President), and
in the absence of the President: the Vice Presidents severally, in the order to
be designated by the chief Executive Officer, shall perform the duties of the
President, and the performance of any such duty by a Vice President shall be
conclusive evidence of his right to act.
Section 6 - ASSISTANT VICE PRESIDENT. Each Assistant Vice President shall
have such powers and perform such duties as may be assigned to him by the Board
of Directors, by the Chief Executive Officer (if other than the President), by
the President, or by any Vice President and the performance of any such duty
shall be conclusive evidence of his right to act.
Section 7 - SECRETARY. The Secretary shall keep minutes of all meetings of
the Board of Directors and Committees thereof, and of the stockholders, and
shall give all notices of meetings of the stockholders, and of the Board of
Directors and Committees
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thereof. He shall have custody of all deeds, contracts, agreements, and other
records, except as otherwise provided in these By-Laws, or by the Board of
Directors, and shall attend to such correspondence of the Company as the Board
of Directors or the Chief Executive Officer shall direct. He shall be the
custodian of the seal of the Company and shall affix it to any instrument
requiring the same, except as otherwise provided herein or by the Board of
Directors. He shall further perform such other duties as may be delegated or
assigned to him by the Board of Directors, or by the Chief Executive Officer,
and the performance of any such duty shall be conclusive evidence of his right
to act.
Section 8 - ASSISTANT SECRETARY. Each Assistant Secretary, if there be any
such officer, shall perform such duties as may be assigned to him by the Board
of Directors, by the Chief Executive Officer, or by the Secretary and the
performance of any such duties shall be conclusive evidence of his right to act.
Section 9 - TREASURER. The Treasurer shall have charge of all receipts and
disbursements of the Company and shall be the custodian of the Company's funds.
He shall have full authority to receive and give receipts for all monies due and
payable to the Company from any source whatever, and to endorse checks, drafts
and warrants in its name and on its behalf, and full discharge for the same to
give. The Treasurer shall also have full authority to sign all checks, notes,
drafts and certificates of stock. A report of the financial condition of the
Company shall be made by the Treasurer or to the Chief Executive Officer
whenever so requested by either of them. He shall further perform such other
duties as may be delegated or assigned to him by the Board of Directors, by the
Chief Executive Officer, or by the Chief Financial Officer, and the performance
of any such duty shall be conclusive evidence of his right to act.
Section 10 - ASSISTANT TREASURER. Each Assistant Treasurer, if there be any
such officer, shall have such powers and shall perform such duties as may be
assigned to him by the Board of Directors, or by the Chief Executive Officer, by
the Chief Financial Officer, or by the Treasurer, and the performance of any
such duty shall be conclusive evidence of his right to act.
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ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1 - ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of the
stockholders shall be held on the last Wednesday in the month of January in each
year, at the hour of 10:30 a.m., at the principal office of the Company in New
Jersey, or at such other date, time and place as may be fixed from time to time
by resolution of the Board of Directors and set forth in the notice of the
meeting, for the purpose of electing directors and transacting such other
business as may properly come before the meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before an annual meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (ii) otherwise properly brought before the meeting by
or at the direction of the Board of Directors or (iii) otherwise properly
brought before the meeting by a stockholder of the Company who was a stockholder
of record at the time of giving of notice provided for in this Section, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Section. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Company, at the principal executive offices
of the Company. To be timely, a stockholder's notice shall be delivered not less
than 75 days prior to the first anniversary of the preceding year's meeting;
provided however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder, to be timely, must be so delivered
not later than the 75th day prior to such annual meeting or the 10th day
following the day on which public announcement (as defined herein) of the date
of such meeting is first made.
Such stockholder's notice shall set forth 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 meeting and the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (ii) as to the stockholder giving the
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notice and the beneficial owner, if any, on whose behalf the proposal is made
(A) the name and address of such stockholder, as they appear on the Company's
books, and of such beneficial owner and (B) the class and number of shares of
the Company which are owned beneficially and of record by such stockholder and
such beneficial owner; and (iii) in the event that such business includes a
proposal to amend either the Certificate of Incorporation or the Bylaws of the
Company, the language of the proposed amendment. Notwithstanding anything in
these By-Laws to the contrary, no business shall be conducted at any annual
meeting except in accordance with this paragraph, and the Chairman of the Board
or other person presiding at an annual meeting of stockholders, may refuse to
permit any business to be brought before an annual meeting without compliance
with the foregoing procedures. For the purposes of this paragraph "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Company with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act. In addition
to the provisions of this paragraph, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in these
By-Laws shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
Each share of stock entitled to vote at any meeting shall be entitled to
one vote, which vote may be given either in person or by proxy, but no proxy
shall be valid for more than eleven months unless a longer time is expressly
provided therein, but in no event shall a proxy be valid after three years from
the date of execution.
All elections for directors shall be by ballot.
Section 2 - SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders may be called at any time by the Chief Executive Officer, or upon
the order of the Board of Directors, or upon the written request of the holders
of a majority of the capital stock outstanding at the time and entitled to vote
there at.
Section 3 - NOTICE OF MEETINGS OF STOCKHOLDERS; POSTPONEMENT OF MEETINGS;
OPENING AND CLOSING OF POLLS. Unless waived, written notice of the time, place,
and purpose or purposes of all
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stockholders' meetings, either annual or special, shall be given by the
Secretary not less than ten nor more than sixty days before the date of the
meeting, either personally or by mail, to each stockholder entitled to vote at
the meeting at his last post office address as shown on the books of the
Company.
Any previously scheduled annual or special meeting of the stockholders may
be postponed by resolution of the Board of Directors upon public announcement
made on or prior to the date previously scheduled for such annual or special
meeting.
The date and time for the opening and the closing of the polls for each
matter to be voted upon at any meeting of stockholders shall be announced at the
meeting by or pursuant to the direction of the officer presiding at the meeting.
Section 4 - RECORD DATES. The Board of Directors by resolution shall have
power to fix in advance a date, not exceeding sixty days or less than ten days
preceding the date of any meeting of stockholders, and not exceeding sixty days
preceding the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, as a record date for the determination of
the stockholders' vote at any such meeting or entitled to receive payment of any
such dividend, or any such allotment of rights or to exercise the rights in
respect to any such change, conversion or exchange of capital stock, and in such
case stockholders of record on the date so fixed shall be exclusively entitled
to such notice of and to vote at such meeting, or to receive payment of such
dividend, or allotment of rights, or to exercise such rights, as the case may
be, not withstanding any transfer of any stock on the books of the Company after
any such record date so fixed as aforesaid.
Section 5 - QUORUM OF STOCKHOLDERS. At any meeting of the stockholders, the
holders of a majority of all the shares of the capital stock of the Company
entitled to vote at such meeting, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, and in that case,
the representation of the number so required shall constitute a quorum.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed by these
By-Laws for an annual meeting or fixed by notice as above provided for a special
meeting, a majority in
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interest of the stockholders present in person or by proxy may adjourn from time
to time, without notice other than by announcement at the meeting, until holders
of the amount of stock requisite to constitute a quorum shall attend. At any
such adjourned meeting at which a quorum shall be present any business may be
transacted which might have been transacted at the meeting as originally called.
ARTICLE IV
COMMITTEES
Section 1 - EXECUTIVE COMMITTEE. The Board of Directors may appoint an
Executive Committee of not less than three of its members, including ex officio
the Chairman of the Board and the Chief Executive Officer (if other than the
Chairman). The Chairman shall, ex officio be the Chairman of the Executive
Committee and shall preside at its meetings.
The Executive Committee shall hold regular meetings at such times and
places as shall be designated by resolution of the Board or of the Committee, or
in the notice of meeting. Special meetings of the Executive Committee may be
called at any time by the Chairman or by the Chief Executive Officer (if other
than the Chairman) and shall be called upon the written request of a majority of
the members thereof.
No notice shall be required for regular meetings of the Executive
Committee, provided the time and place thereof shall have been previously fixed
by resolution of the Board or the Committee. Two days notice of a special
meeting of the Executive Committee shall be given to each member, but this
notice may be waived by such member at any time in writing or by telegraph. A
meeting of the Executive Committee may be held at any time without notice when
all the members are present and consent thereto. The Executive Committee may
also act without a meeting, by unanimous written consent of the members thereof
which shall be filed with the minutes of the Board. At every meeting of the
Executive Committee, the presence in person or by telephonic conference call, of
a majority of the members thereof shall constitute a quorum for the transaction
of business.
During the intervals between the meetings of the Board of Directors, the
Executive Committee shall possess and may exercise all the powers of the Board
of Directors as may be permitted by
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law in the management and direction of the business and the conduct of the
affairs of the Company, in such manner as the Executive Committee shall deem
best for the interests of the Company, in all cases in which specific directions
shall not have been given by the Board of Directors.
All action taken by the Executive Committee shall be reported to the Board
of Directors at its meeting next succeeding such action.
Section 2 - AUDIT COMMITTEE. The Board of Directors shall appoint an Audit
Committee of not less than three of its members who are otherwise independent of
the management of the Company. The Audit Committee shall make recommendations to
the Board with respect to the retention of the Company's independent auditors,
and shall review the plan and scope of the annual and other independent audits;
consult with the Company's independent auditors regarding audit results and
financial statements, including compliance with disclosure requirements; oversee
the adequacy of the Company's system of internal accounting control; and oversee
the effectiveness of the Company's internal audit function, including review and
consultation with the Company's internal auditors with respect to internal audit
results and recommendations.
Section 3 - OTHER COMMITTEES. The Board of Directors may, from time to
time, appoint such other committees for any purpose or purposes as the Board may
deem appropriate, which shall have such powers as shall be specified in the
resolution of appointment.
Section 4 - RECORDS AND REPORTS. All committees shall keep full records of
their proceedings, and shall report from time to time to the Board, as called
upon by the Board, or as provided by these By-Laws.
Section 5 - REMUNERATION. Directors, other than Company Officers, shall
receive such compensation for their services as a member of any Committee of the
Board in such amount as shall be fixed by the Board of Directors from time to
time.
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ARTICLE V
COMPANY STOCK
Section 1 - TRANSFER OF SHARES. Shares of Company stock shall be
transferable only on the books of the Company by the holder or owner in person
or by power of attorney, on surrender of the certificate. The canceled
certificate shall be permanently attached to its original stub in the book of
certificates.
Section 2 - STOCKHOLDER LIST. It shall be the duty of the Secretary or
Assistant Secretary to prepare, at least ten days before every stockholders'
meeting, a true, full, and complete list of all the stockholders of the Company
entitled to vote at the ensuing meeting, with the residence or other address of
record of each and with the number of shares held by each, which list shall be
made and arranged in alphabetical order, and shall, at all times during the
usual hours for business, be open to the examination of any stockholder.
Section 3 - LOST CERTIFICATES OF STOCK. Any person or persons applying for
a certificate of stock to be issued in lieu of one alleged to be lost or
destroyed, shall, pursuant to the laws of the State of New Jersey relating to
lost or destroyed certificates of stock, furnish to the Company such information
as the Board of Directors may require to ascertain whether a certificate of
stock has been lost or destroyed, and shall if required by the Board, furnish a
surety bond in form and amount satisfactory to the Board to indemnify the
Company and its transfer agent against any claim or loss arising therefrom.
ARTICLE VI
STOCK OF OTHER CORPORATIONS
Section 1 - VOTING OF STOCK. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer or the President of the Company or, in
his or their absence, any Vice President, shall have full power and authority on
behalf of the Company to attend and to act and to vote at any meetings of
stockholders of any corporation in which the Company may hold stock, and at any
such meeting shall possess and may exercise any and all the rights and powers
incident to the ownership of such stock, and which as the owner thereof, the
Company might have possessed and
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exercised. The Board of Directors or the Executive Committee, by resolution,
from time to time may confer like powers upon any other person or persons.
Section 2 - WAIVERS AND CONSENTS. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer or the President of the Company or in his
or their absence, any Vice President, shall have full power and authority on
behalf of the Company to waive notice of any meeting of stockholders of any
corporation in which the Company may hold stock, and to authorize or approve and
consent in writing to any action by any such corporation to the same extent and
with the same force and effect as an individual stockholder of such corporation.
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall begin on October first of
each year.
ARTICLE VIII
SEAL
Section 1. The seal of the Company shall be similar to the impression
contained in the margin opposite hereto. It may at any time be changed by
resolution of the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND EMPLOYEES
Section 1. (a) The Company shall indemnify to the fullest extent from time
to time permitted by law any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such action, suit or
proceeding, other than a proceeding by or in the right of the Company, by reason
of the fact that he was a director,
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officer or employee of the Company (and may indemnify any person who was an
agent of the Company), or a person serving at the request of the Company as a
director, officer, trustee or employee of another corporation, partnership joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise
whether or not for profit, including without limitation indemnification against
liabilities (amounts paid or incurred in satisfaction of settlements, judgments,
fines and penalties) and expenses (reasonable costs, disbursements and counsel
fees) incurred by such person in connection with such proceeding, if
(i) such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interest of the Company; and
(ii) with respect to any criminal proceeding, such person had no reasonable
cause to believe his conduct was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that such person did not meet the applicable
standards of conduct set forth in Article IX, Section l(a)(i) or Section
l(a)(ii).
(b) The Company shall pay the expenses of a person in connection with any
proceeding by or in the right of the Company if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company. However, in such proceeding no indemnification shall be provided in
respect of 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
Superior Court or the court in which such proceeding was brought shall determine
upon application that despite the adjudication of liability, but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Superior Court or such other court shall deem
proper.
(c) Any indemnification under Section l(a) and, unless ordered by a court,
under Section l(b), may be made by the Company only as authorized in a specific
case upon a determination that indemnification is proper in the circumstances
because the director, officer or employee met the applicable standard of conduct
set forth therein. Unless otherwise provided in the certificate of incorporation
or by-laws, such determination shall be made
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(i) by the Board of Directors or a Committee thereof, acting by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; or
(ii) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the Board of Directors or Committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the Board of Directors.
(d) Expenses incurred by a director, officer or employee in connection with
such a proceeding shall be paid by the Company in advance of the final
disposition of the proceeding as authorized by the Board of Directors upon
receipt of an undertaking by or on behalf of such person to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
as provided in this section.
(e) The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of this section shall not exclude any other
rights to which a person may be otherwise entitled provided that no
indemnification shall be made to or on behalf of a person if a judgment or other
final adjudication adverse to such person establishes that his acts or omissions
(a) were in breach of his duty of loyalty to the corporation or its
shareholders, (b) were not in good faith or involved a knowing violation of law,
or (c) resulted in receipt by the corporate agent of an improper personal
benefit.
(f) The Company shall have the power to purchase and maintain insurance on
behalf of any director, officer or employee of the Company against an expenses
incurred in any proceeding and any liabilities asserted against him by reason of
his being or having been such, whether or not the Company would have the power
to indemnify him against such expenses and liabilities under the provisions of
this Section. The Company may purchase such insurance from, or such insurance
may be reinsured in whole or in part by, an insurer owned by or otherwise
affiliated with the Company, whether or not such insurers does business with
other insureds.
(g) All rights of indemnification under this Section shall be deemed a
contract between the Company and the person entitled to indemnification under
this Section pursuant to which the Company and each such person intend to be
legally bound. Any repeal, amendment or modification thereof shall be
prospective only and shall not limit but may expand, any rights or obligations
in
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respect of any proceeding whether commenced prior to or after such change to the
extent such proceeding pertains to actions or failures to act occurring prior to
such change.
(h) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall continue as to a person who has ceased to be an
officer, director or employee in respect of matters arising prior to such time,
and shall inure to the benefit of the heirs executors, and administrators of
such person.
ARTICLE X
AMENDMENTS
Section 1. These By-Laws may be amended or repealed (i) by action of a
majority of the Board of Directors at any regular or special meeting of the
Board of Directors, provided notice of such alteration, amendment, or repeal
shall be given in the notice of any such meeting, or (ii) except as otherwise
provided in Paragraphs 6, 7, 8, and 9 of the Certificate of Incorporation of the
Corporation, by action of the holders of a majority of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, considered for this purpose as one class.
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