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EXHIBIT 3(e)
(Sec. 3.3 deleted 4/25/96
Sec. 3.1 amended 7/31/00)
BY-LAWS
OF
ANADARKO PETROLEUM CORPORATION
ARTICLE I
OFFICE AND RECORDS
1.1. The Corporation shall maintain a registered office in
Delaware, and may maintain such other offices and keep its books,
documents and records at such places within or without Delaware
as may from time to time be designated by the Board of Directors.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. All meetings of the stockholders of the Corporation
shall be held at such place or places, within or without the
State of Delaware, as may from time to time be fixed by the Board
of Directors, or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
2.2. The Annual Meeting of Stockholders shall be held on
such date and at such time as may be fixed by the Board and
stated in the notice thereof, for the purpose of electing
directors and for the transaction of only such other business as
is properly brought before the meeting in accordance with these
By-Laws.
To be properly brought before the meeting, business must be
either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (b) otherwise
properly brought before the meeting by or at the direction of the
Board, or (c) otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements,
for business to be properly brought before the Annual Meeting by
a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than 50 days nor more than 75 days prior to the meeting;
provided, however, that in the event that less than 65 days'
prior public disclosure of the date of the meeting is made to
stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 15th day
following the day on which such public disclosure was made or
notice of the date of the meeting was mailed, whichever first
occurs. A stockholder's notice to the Secretary 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 Annual Meeting and the reasons for
conducting such business at the Annual Meeting, (ii) the name and
record address of the stockholder proposing such business, (iii)
the class and number of shares of the Corporation which are
beneficially owned by the stockholder and (iv) any material
interest of the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary,
no business shall be transacted at the Annual Meeting except in
accordance with the procedures set forth in this Section,
provided, however, that nothing in this Section shall be deemed
to preclude discussion by any stockholder of any business
properly brought before the Annual Meeting.
The Chairman of the Annual Meeting shall, if the facts
warrant, determine and declare to the meeting that certain
business was not properly brought before the meeting in
accordance with the provisions of this Section, and if he should
so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
2.3. Special meetings of the stockholders shall be called
by the Board. The business transacted at a special meeting shall
be confined to the purposes specified in the notice thereof.
Special meetings shall be held at such date and at such time as
the Board may designate.
2.4. Written notice of each meeting of stockholders,
stating the place, date and hour of the meeting, and the purpose
or purposes thereof, shall be mailed not less than ten nor more
than sixty days before the date of such meeting to each
stockholder entitled to vote thereat.
2.5. Unless otherwise provided by statute, stockholders
entitled to cast a majority of the total votes entitled to be
cast by all stockholders at a meeting, present either in person
or by proxy, shall constitute a quorum at such meeting. The
Secretary of the Corporation (or in his absence an Assistant
Secretary or an appointee of the presiding officer of the
meeting) shall act as the Secretary of the meeting. Whether or
not a quorum is present, holders of shares of stock entitled to
cast a majority of votes present at a meeting, in person or by
proxy, may adjourn the meeting from time to time to another time
or place, at which time, if a quorum is present, any business may
be transacted which might have been transacted at the meeting as
originally scheduled. Notice need not be given of the adjourned
meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken, unless the adjournment
is for more than thirty days or a new record date is fixed for
the adjourned meeting, in which event a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.6. Each stockholder entitled to vote at any meeting shall
be entitled, for each share held of record on the record date
fixed as provided in Section 10.3 of Article X of these By-Laws
for determining the stockholders entitled to vote at such
meeting, to a number of votes (in person or by written proxy)
determined as provided in the Restated Certificate of
Incorporation. Except as otherwise provided by statute or by the
Restated Certificate of Incorporation or these By-laws, the vote
of a plurality of the votes cast shall be sufficient to elect
directors and to pass any resolution within the power of the
holders of all the outstanding shares.
Elections of directors need not be by ballot; provided
however, that by resolution duly adopted, a vote by ballot may be
required.
2.7. Any stockholder entitled to vote upon any matter at
any meeting of stockholders may so vote by proxy. Every proxy
shall be in writing (which shall include telegraphing or cabling)
subscribed by the stockholder or his duly authorized attorney,
and shall be dated, but need not be sealed, witnessed or
acknowledged. Proxies shall be delivered to the Secretary of the
Corporation before such meeting.
2.8. At each meeting of the stockholders the polls shall be
opened and closed, the proxies and ballots shall be received and
be taken in charge, and all questions touching the qualification
of voters and the validity of proxies and the acceptance or
rejection of votes shall be decided by three inspectors, two of
whom shall have power to make a decision. Such inspectors shall
be appointed by the Board before the meeting, or in default
thereof by the presiding officer at the meeting, and shall be
sworn to the faithful performance of their duties. If any of the
inspectors previously appointed shall fail to attend or refuse or
be unable to serve, substitutes shall be appointed by the
presiding officer.
ARTICLE III
BOARD OF DIRECTORS
3.1. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors
consisting of not less than six (6) nor more than fifteen (15)
directors, the exact number of directors to be determined from
time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall
be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors
constituting the Board of Directors. At a special meeting of
stockholders held August 27, 1986, Class I directors were elected
for a term ending at the 1987 Annual Meeting of Stockholders,
Class II directors were elected for a term ending at the 1988
Annual Meeting of Stockholders, and Class III directors were
elected for a term ending at the 1989 Annual Meeting of
Stockholders, in each case effective as of the date of filing of
the Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware. At each Annual Meeting of
Stockholders beginning in 1987, successors to the class of
directors whose term expires at that Annual Meeting shall be
elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class
as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent
director. A director shall hold office until the Annual Meeting
for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that
a quorum is present, and any other vacancy occurring in the Board
of Directors may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire
Board of Directors, may be removed from office at any time, but
only for cause.
3.2. The Board of Directors may exercise all such powers of
the Corporation and do all such lawful acts and things as are not
by the laws of Delaware, by the Restated Certificate of
Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
ARTICLE IV
MEETINGS OF THE BOARD
4.1. The first meeting of the Board of Directors after the
Annual Meeting of Stockholders may be held without notice, either
immediately after said meeting of stockholders and at the place
where it was held, or at such other time and place, whether
within or without Delaware, as shall be fixed by the vote of the
stockholders at the Annual Meeting, or by the consent in writing
of all the directors.
4.2. Regular meetings of the Board may be held without
notice at such time and place, whether within or without
Delaware, as shall from time to time be determined by the Board.
4.3. Special meetings of the Board of Directors shall be
called by the Secretary at the request in writing of the Chief
Executive Officer or of any three directors. Such request shall
state the purpose or purposes of the proposed meeting. Such
meetings may be held at any place, whether within or without
Delaware. Notice of each such meeting shall be given by the
Secretary to each director at least three days before the
meeting. Such notice shall set forth the time and place at which
the meeting is to be held and the purpose or purposes thereof.
No such notice of any given meeting need be given to any director
who files a written waiver of notice thereof with the Secretary,
either before or after the meeting.
4.4. A quorum for the transaction of business at meetings
of the Board of Directors shall consist of a majority of the
directors then in office, but in no event less than one-third of
the whole Board. In the absence of a quorum at any duly
scheduled or duly called meeting, a majority of the directors
present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is
present, at which time any business may be transacted which might
have been transacted at the meeting as originally scheduled.
ARTICLE V
COMMITTEES OF THE BOARD
5.1. General.
(a) The Board of Directors may, by resolution passed by a
majority vote of the full membership of the Board, designate one
or more committees, each committee to consist of two or more
directors. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such
committee shall have and may exercise such powers as are
designated in the resolution of the Board or set forth in these
By-Laws.
(b) Unless he resigns, dies or is removed prior thereto,
each member of a committee shall continue to hold office until
the first meeting of the Board following the first Annual Meeting
of Stockholders next following his designation, and until his
successor has been designated. Resignations of members of a
committee must be in writing and shall be effective upon the date
of receipt thereof by the Secretary or upon the effective date
specified therein, whichever date is later, unless acceptance is
made a condition of the resignation, in which event it shall be
effective upon acceptance by the Board. Any member of a
committee may be removed at any time, with or without cause, by a
majority vote of the full membership of the Board.
(c) Regular meetings of a committee may be held without
notice at such time and place as shall from time to time be
determined by the committee. Special meetings of a committee
shall be called by the Secretary at the request of the Chief
Executive Officer or of any two members of the committee. Notice
of each special meeting of a committee shall be given by the
Secretary to each member of the committee. No such notice of any
meeting need be given to any member of a committee who attends
the meeting or who files a written waiver of notice thereof with
the Secretary, either before or after the meeting.
(d) Unless the Board of Directors otherwise provides, each
committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a
provision by the Board, a provision in the rules of such
committee or a provision in the By-Laws to the contrary, a
majority of the entire number of members of such committee shall
constitute a quorum for the transaction of business, and the vote
of a majority of the members present at a meeting at the time of
such vote if a quorum is then present shall be the act of such
committee. If the Board has not designated alternate members of
a committee, or if all such alternates are absent or disqualified
from voting, the member or members of the committee present at
any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may in the absence or
disqualification of any member of the committee unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of such absent or disqualified member.
(e) Each committee may designate a chairman of such
committee by majority vote of the committee's full membership,
unless designation of a chairman is otherwise specified in these
By-Laws or provided by resolution of the Board of Directors.
5.2. Executive Committee.
(a) The Board of Directors may designate an Executive
Committee. During the intervals between meetings of the Board,
the Committee shall advise with and aid the officers of the
Corporation in all matters concerning its interests and the
management of its business, and generally perform such duties as
may be directed by the Board of Directors from time to time. The
Committee shall have and may exercise all the powers and
authority of the Board in the management of the business and
affairs of the Corporation while the Board is not in session, and
may authorize the seal of the Corporation to be affixed to all
papers which may require it; but the Committee shall not have
power or authority in reference to amending the Restated
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution,
amending the By-Laws, filling newly created directorships and
vacancies on the Board or the Committee, or (unless expressly
authorized by resolution of the Board) declaring a dividend or
authorizing the issuance of stock.
(b) A quorum for the transaction of business at meetings of
the Executive Committee shall consist of a majority of the
members of the Committee then in office.
(c) The Executive Committee shall keep regular minutes of
proceedings, copies of which shall be sent to each member of the
Board of Directors.
ARTICLE VI
COMPENSATION OF DIRECTORS
6.1. Each director and each advisory director shall, in
consideration of his serving as a director or advisory director,
be paid by the Corporation such reasonable compensation as shall
be fixed from time to time by resolution of the Board of
Directors, together with traveling, food, lodging and other
expenses incurred in attending meetings of the Board; provided
that no director or advisory director who is also an employee of
the Corporation shall be entitled to receive any compensation for
his services as a director or advisory director.
6.2. Members of committees of the Board of Directors may
receive such reasonable compensation for their services as may be
fixed from time to time by resolution of the Board of Directors;
provided that nothing herein contained shall be construed to
preclude any member of any committee from serving the Corporation
in any other capacity and receiving compensation therefor.
ARTICLE VII
OFFICERS
7.1. General.
(a) The officers of the Corporation shall be chosen by the
Board of Directors. The principal officers shall be a Chairman
of the Board, a Vice Chairman of the Board (if chosen by the
Board), a President, one or more Vice Presidents (one or more of
whom may be designated Executive Vice President, one or more of
whom may be designated Group Vice President and one or more of
whom may be designated Senior Vice President), a Secretary, a
Treasurer, a Controller, and a General Counsel (if chosen by the
Board). The principal officers shall be elected each year at the
first meeting of the Board of Directors after the Annual Meeting
of the Stockholders of the Corporation. Two or more offices may
be held by the same person. The Chairman of the Board, the Vice
Chairman of the Board and the President shall be chosen by the
directors from their own number. The salaries of the principal
officers of the Corporation shall be fixed by the Board.
(b) The Board may appoint such other officers, assistant
officers and agents as it shall deem necessary, who shall hold
their offices for such terms and shall exercise such powers and
perform such duties as shall be determined by the Board. The
salaries of persons appointed under this section may be fixed by
the Chief Executive Officer, who shall report to the Board
annually thereon.
(c) Unless he resigns, dies or is removed prior thereto,
each officer of the Corporation shall hold office until his
successor has been chosen and has qualified. Any person elected
or appointed by the Board of Directors may be removed at any
time, with or without cause, and all vacancies (however arising)
may be filled at any time, by the affirmative vote of a majority
of the directors then in office. Any other employee of the
Corporation may be removed at any time, with or without cause, by
the Chief Executive Officer or by any superior of such employee
to whom the power of removal has been delegated by the Chief
Executive Officer.
7.2. Chief Executive Officer.
(a) The Board of Directors shall designate either the
Chairman of the Board or the President to be the Chief Executive
Officer of the Corporation.
(b) All other officers of the Corporation shall be subordinate
to the Chief Executive Officer and shall from time to time report
to him as he may direct. He shall have general supervision and
direction of the business of the Corporation and shall see that
all orders and resolutions of the Board are carried into effect.
(c) He shall have all the general powers and duties usually
vested in the chief executive officer of a corporation, and in
addition shall have such other powers and perform such other
duties as may be prescribed from time to time by the Board of
Directors.
7.3. Chairman of the Board.
(a) The Chairman of the Board shall preside at all meetings
of the stockholders and directors.
(b) He shall be a member and chairman of the Executive
Committee and he shall have such other powers and perform such
other duties as may be prescribed from time to time by the Board
of Directors.
(c) He shall, if designated Chief Executive Officer, have
all the powers and duties granted and delegated to the Chief
Executive Officer by the By-Laws. If not designated Chief
Executive Officer, he shall be vested with all the powers and
authorized to perform all the duties of the Chief Executive
Officer in his absence or disability.
7.4. Vice Chairman of the Board.
(a) If the Board chooses a Vice Chairman of the Board, he
shall preside at meetings of the stockholders or directors in the
absence or disability of the Chairman of the Board.
(b) He shall have such other powers and perform such other
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
7.5. President.
(a) He shall be a member of the Executive Committee and he
shall have such other powers and perform such other duties as may
be prescribed from time to time by the Board of Directors.
(b) He shall, if designated Chief Executive Officer, have all
the power and duties granted and delegated to the Chief Executive
Officer by these By-Laws. If not designated Chief Executive
Officer, he shall be vested with all the powers and authorized to
perform all the duties of the Chief Executive Officer in his
absence or disability.
7.6. Executive Vice President.
If the Board designates one or more Executive Vice
Presidents, such officer or officers shall have such powers and
perform such duties as may be prescribed from time to time by the
Board of Directors or the Chief Executive Officer and shall be
vested with all the powers and authorized to perform all the
duties of the Chairman of the Board, the Vice Chairman of the
Board and the President in the absence or disability of all of
said officers. Each Executive Vice President shall have all the
powers and duties granted and delegated to each Group Vice
President, Senior Vice President and Vice President by these By-
Laws.
7.7. Group Vice President.
If the Board designates one or more Group Vice Presidents,
such officer or officers shall have general direction of and
supervision over such operating offices of the Corporation or
over such departments of the Corporation and its subsidiaries as
the Board of Directors or the Chief Executive Officer may
prescribe. Each Group Vice President shall have all the powers
and duties granted and delegated to each Vice President (other
than the Executive Vice Presidents) by these By-Laws and shall
have such other powers and perform such other duties as may be
prescribed from time to time by the Board of Directors or the
Chief Executive Officer. In the absence or disability of the
Chairman of the Board, the Vice Chairman of the Board, the
President and the Executive Vice Presidents, each Group Vice
President shall be vested with all the powers and authorized to
perform all the duties of said officers.
7.8. General Counsel.
If the Board designates a General Counsel, the General
Counsel shall be the principal legal officer of the Corporation.
He shall have general direction of and supervision over the legal
affairs of the Corporation and shall advise the Board of
Directors and officers of the Corporation on all legal matters.
He shall have such other powers and perform such other duties as
may be prescribed from time to time by the Board of Directors or
the Chief Executive Officer.
7.9. Senior Vice President.
If the Board designates one or more Senior Vice Presidents,
such officer or officers shall have such powers and perform such
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer. In the absence or
disability of the Chairman of the Board, the Vice Chairman of the
Board, the President, the Executive Vice Presidents and the Group
Vice Presidents, each Senior Vice President shall be vested with
all the powers and authorized to perform all the duties of said
officers.
7.10. Vice President.
Each Vice President shall have such powers and perform such
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer. In the absence or
disability of the Chairman of the Board, the Vice Chairman of the
Board, the President, the Executive Vice Presidents, the Group
Vice Presidents and the Senior Vice Presidents, each Vice
President shall be vested with all the powers and authorized to
perform all the duties of said officers.
7.11. Secretary.
The Secretary shall attend all sessions of the Board and all
meetings of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose. He
shall perform like duties for committees of the Board when
required. He shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors, when
notice is required by these By-Laws. He shall have custody of
the seal of the Corporation, and, when authorized by the Board of
Directors, or when any instrument requiring the corporate seal to
be affixed shall first have been signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or any Vice
President, shall affix the seal to such instrument and shall
attest the same by his signature. He shall have such other
powers and perform such other duties as may be prescribed from
time to time by the Board of Directors or the Chief Executive
Officer.
7.12. Assistant Secretary.
If the Board appoints one or more Assistant Secretaries,
each Assistant Secretary shall be vested with all the powers and
authorized to perform all the duties of the Secretary in his
absence or disability. The performance of any act or the
execution of any instrument by an Assistant Secretary in any
instance in which such performance or execution would customarily
have been accomplished by the Secretary shall constitute
conclusive evidence of the absence or disability of the
Secretary. Each Assistant Secretary shall perform such other
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
7.13. Treasurer.
(a) The Treasurer shall have custody of the corporate funds
and securities, and he shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation, in such depositories
as may be designated by the Board of Directors.
(b) He shall disburse the funds of the Corporation as
ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer
and the Board of Directors, at the regular meetings of the Board,
or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the
Corporation.
(c) If required by the Board of Directors, he shall give
the Corporation a bond in a sum and with one or more sureties
satisfactory to the Board, for the faithful performance of the
duties of his office, and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging
to the Corporation.
(d) He shall have such other powers and perform such other
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
7.14. Assistant Treasurer.
If the Board appoints one or more Assistant Treasurers, each
Assistant Treasurer shall be vested with all the powers and
authorized to perform all the duties of the Treasurer in his
absence or disability. The performance of any act or the
execution of any instrument by an Assistant Treasurer in any
instance in which such performance or execution would customarily
have been accomplished by the Treasurer shall constitute
conclusive evidence of the absence or disability of the
Treasurer. Each Assistant Treasurer shall perform such other
duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
7.15. Controller.
The Controller shall be the principal accounting officer of
the Corporation. He shall maintain adequate records of all
assets, liabilities and transactions of the Corporation and shall
be responsible for the design, installation and maintenance of
accounting and cost systems and procedures throughout the
Corporation. He shall have such other powers and perform such
other duties as may be prescribed from time to time by the Board
of Directors or the Chief Executive Officer.
7.16. Assistant Controller.
If the Board appoints one or more Assistant Controllers,
each Assistant Controller shall be vested with all the powers and
authorized to perform all duties of the Controller in his absence
or disability. The performance of any act or the execution of
any instrument by an Assistant Controller in any instance in
which such performance or execution would customarily have been
accomplished by the Controller shall constitute conclusive
evidence of the absence or disability of the Controller. Each
Assistant Controller shall perform such other duties as may be
prescribed from time to time by the Board of Directors or the
Chief Executive Officer.
7.17. Duties of Officers May be Delegated.
In case of the absence of any officer of the Corporation, or
for any other reason that the Board may deem sufficient, the
Board may delegate, for the time being, the powers or duties, or
any of them, of such officer to any other officer, or to any
director, provided a majority of the directors then in office
concur therein.
ARTICLE VIII
POWERS OF EXECUTION
8.1. All checks and other demands for money and notes and
other instruments for the payment of money shall be signed on
behalf of the Corporation by such officer or officers or by such
other person or persons as the Board of Directors may from time
to time designate. The signature of any such officer or other
person may be a facsimile if so authorized by the Board of
Directors.
8.2. All contracts, deeds and other instruments to which
the seal of the Corporation is affixed shall be signed on behalf
of the Corporation by the Chairman of the Board, by the Vice
Chairman of the Board, by the President, by any Vice President,
or by such other person or persons as the Board of Directors may
from time to time designate, and shall be attested by the
Secretary or an Assistant Secretary.
8.3. All other contracts, deeds and instruments shall be
signed on behalf of the Corporation by the Chairman of the Board,
by the Vice Chairman of the Board, by the President, by any Vice
President, or by such other person or persons as the Board of
Directors or the Chief Executive Officer may from time to time
designate.
8.4. All shares of stock owned by the Corporation in other
corporations shall be voted on behalf of the Corporation by such
persons and in such manner as shall be prescribed by the Chief
Executive Officer.
ARTICLE IX
INDEMNIFICATION
9.1 (a) The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether criminal, civil, administrative or investigative,
including actions, suits or proceedings by or in the right of the
Corporation, by reason of the fact that such person is or was a
director, advisory director, officer or employee of the
Corporation, or is or was serving at the request of the
Corporation as a director, advisory director, officer or employee
of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against judgments,
fines (including excise taxes assessed with respect to employee
benefit plans), amounts paid in settlement, reasonable expenses
(including attorneys' fees) and other liabilities arising in
connection with such action, suit or proceeding, and reasonable
expenses (including attorneys' fees) incurred in enforcing the
rights provided by this Section 9.1., to the fullest extent to
which indemnity may lawfully be provided pursuant to a by-law
under applicable law. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding, and interest on any such expenses not paid by
the Corporation when due shall be paid by the Corporation at the
rate announced from time to time by Manufacturers Hanover Trust
Company as its reference rate, to the fullest extent to which
advancement of such expenses and payment of such interest may
lawfully be provided pursuant to a by-law under applicable law;
provided, however, that, unless otherwise authorized by the Board
of Directors, no person shall be entitled to such advance payment
of expenses with respect to any action, suit or proceeding not by
or in the right of the Corporation, unless such person shall have
given the Corporation reasonable notice of the institution of
such action, suit or proceeding and the opportunity to control
the defense thereof (with counsel reasonably satisfactory to such
person).
(b) The rights provided by this Section 9.1 are for the
benefit of the persons referred to herein and their respective
heirs, executors and administrators and shall be legally
enforceable against the Corporation by such persons (who shall be
presumed to have relied on such rights in undertaking or
continuing any of the positions referred to herein) or by their
respective heirs, executors and administrators. No amendment to
or restatement of this Section 9.1, or merger or consolidation of
the Corporation, shall impair the rights of indemnification
provided by this Section 9.1 with respect to any action or
failure to act, or alleged action or failure to act, occurring or
alleged to have occurred prior to such amendment, restatement,
merger or consolidation.
ARTICLE X
MISCELLANEOUS
10.1. Certificates of Stock.
The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by (i) the Chairman of the Board,
or Vice Chairman of the Board, or President or a Vice President
and (ii) the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary.
10.2. Transfers of Stock.
Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
10.3. Date for Determining Stockholders of Record.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten
days before the date of such meeting nor more than sixty days
prior to any other action.
10.4. Registered Stockholders.
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of
Delaware.
10.5. Lost Certificates.
Any person claiming a certificate of stock to be lost,
stolen or destroyed shall make an affidavit or affirmation of
that fact, and shall if the Board of Directors so requires give
the Corporation a bond of indemnity, in form and amount and with
one or more sureties satisfactory to the Board, whereupon a new
certificate may be issued of the same tenor and for the same
number of shares as the one alleged to be lost, stolen or
destroyed. The Board of Directors in its discretion may, as a
prerequisite to the issuance of a new certificate, impose such
additional lawful requirements as its sees fit, including, but
without limiting the generality of the foregoing, the requirement
that the alleged loss, theft or destruction of the old
certificate be advertised in one or more newspapers published in
an appropriate place or places; and the Board of Directors may in
its discretion refuse to issue a new certificate except upon the
order of a court having jurisdiction in such matter.
10.6. Dividends.
(a) Dividends upon the capital stock of the Corporation may
be declared by the Board of Directors at any regular or special
meeting as provided by the laws of Delaware and the Restated
Certificate of Incorporation.
(b) Before payment of any dividend or making any
distribution of profits, there may be set aside out of the
surplus or net profits of the Corporation such sum or sums as the
directors from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
Corporation, or for such other purposes as the directors shall
think conducive to the interests of the Corporation.
10.7. Seal.
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words,
"Corporate Seal, Delaware."
10.8. Notices.
Whenever, under the provisions of these By-Laws, notice is
required to be given to any director, officer or stockholder, it
shall be construed to mean personal notice, but such notice may
be given in writing, by mail, by depositing the same in the
United States mail in a postpaid sealed wrapper, addressed to
such director, officer or stockholder at such address as appears
on the records of the Corporation, or, in the default of other
address, to such director, officer or stockholder at the General
Post Office in any city in which the Corporation maintains an
office, and such notice shall be deemed to be given at the time
when the same shall be thus mailed.
10.9. Amendments.
Except as otherwise provided by law, these By-Laws or the
Restated Certificate of Incorporation, these By-Laws may be
altered, amended or repealed (i) at any regular or special
meeting of the stockholders by the affirmative vote of the
holders of a majority of the stock issued and outstanding and
entitled to vote thereat or (ii) at any regular or special
meeting of the Board of Directors by affirmative vote of a
majority of the directors then in office; provided, however, that
notice of the proposed alteration or amendment shall have been
contained in the notice of the meeting.
10.10. Fiscal Year.
The fiscal year of the Corporation shall be the calendar
year.
10.11. Safe Deposit Boxes.
The Corporation may rent such safe deposit boxes, and may
deposit therein such securities, documents and articles, as the
Board of Directors may designate from time to time. Access to
such safe deposit boxes shall be granted only (i) to any two of
the following officers of the corporation attending together:
Chairman of the Board, Vice Chairman of the Board, President, a
Vice President, Secretary, Treasurer and Controller, or (ii) to
any one of the foregoing officers and either an Assistant
Secretary or an Assistant Treasurer, attending together.
10.12. Custodian Accounts.
Any or all of the securities owned by this Corporation may
be deposited with such custodian or custodians as the Board of
Directors may designate from time to time. The custodian shall
not be authorized to negotiate such securities or to take any
other action with respect thereto except upon written directions
signed (i) by any two of the following officers of the
Corporation: Chairman of the Board, Vice Chairman of the Board,
President, a Vice President, Secretary, Treasurer and Controller,
or (ii) by any one of the foregoing officers and either an
Assistant Secretary or an Assistant Treasurer.
10.13. Construction of Words.
The use of the masculine gender in any provisions of these
By-Laws shall not be deemed to indicate any distinction based on
sex, but shall be deemed to include the feminine gender wherever
it is found.
