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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 (Date of earliest event reported) December 19, 1995
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United Parcel Service of America, Inc.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 0-4714 95-1732075
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
55 Glenlake Parkway, N.E., Atlanta, Georgia 30328
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (404) 828-6000
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
Exhibit 3(ii). By-laws as amended to December 19, 1995, reflecting
amendments to Article II, Sections 3 and 10, and Article III, Section 14.
Article II, Section 3 is amended to allow stockholders holding at
least one half of the outstanding voting shares of the company to call a
special meeting of stockholders.
Article II, Section 10 is amended to change the notice period for
stockholder business to be raised at the annual meeting to a time period
comparable to that which governs shareholder proposals under federal proxy
rules.
Article III, Section 14 is amended to allow holders of $1,000 or
more of voting stock to make nominations of persons for election to the Board
of Directors. The time period for notice contained in Section 14 is amended to
be comparable to the time period which governs the making of shareholder
proposals under federal proxy rules.
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UNITED PARCEL SERVICE OF AMERICA, INC.
EXHIBIT INDEX
Exhibit No. Description
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Exhibit 3(ii) By-laws as amended to December 19, 1995, reflecting amendments
to Article II, Sections 3 and 10, and Article III, Section 14.
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SIGNATURES
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.
United Parcel Service of America, Inc.
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(Registrant)
Date December 20, 1995 By /s/ Joseph R. Moderow
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Joseph R. Moderow
Senior Vice President, Secretary
and General Counsel
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EXHIBIT 3(ii)
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By-Laws
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United Parcel Service of America, Inc.
(a Delaware corporation)
As Amended to December 19, 1995
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United Parcel Service of America, Inc.
By-Laws
As amended to December 19, 1995
ARTICLE I.
Offices.
Section 1. Principal Office. The principal office of United Parcel
Service of America, Inc. (hereinafter call the Corporation), in the State of
Delaware, shall be in the City of Wilmington, County of New Castle. The name
of the resident agent in charge thereof is Corporation Trust Company of
America.
Section 2. Other Offices. The Corporation may also have an office or
offices at such other place or places either within or outside the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation require.
ARTICLE II.
Meetings of Stockholders.
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Section 1. Place of Meeting. All meetings of the stockholders for
the election of directors of the Corporation shall be held at the office of the
Corporation in the City of Wilmington, State of Delaware.
Such place of meeting shall not be changed within sixty days next before the
day on which the election is to be held. A notice of any change shall be given
to each stockholder entitled to vote at least twenty days before the election
is held, in person or by letter mailed to him at his post-office address last
known to the Secretary of the Corporation. All other meetings of the
stockholders shall be held at such place, 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.
Section 2. Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
may come before the meeting shall be held on the first Friday in May in each
year, if not a legal holiday under the laws of the State where such meeting is
to be held, and, if a legal holiday under the laws of said State, then on the
next succeeding business day not a legal holiday under the laws of said State,
at such hour as may be named in the notice of said meeting. If the election of
directors shall not be held on the day designated herein for any annual meeting
or at any adjournment of such meeting, the Board of Directors shall cause the
election to be held at a special meeting as soon thereafter as conveniently may
be. At such special meeting the stockholders may elect the directors and
transact other business with same force and effect as at an annual meeting duly
called and held.
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Section 3. Special Meetings. A special meeting of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute, may be
called at any time by the President or a Vice-President or by order of the
Board of Directors or by a stockholder or stockholders holding of record at
least one-half of the outstanding capital stock of the Corporation entitled to
the vote at such meeting.
Section 4. Notice of Meetings. Except as otherwise provided by
statute, notice of each meeting of the stockholders, whether annual or special,
shall be given at least fourteen days before the day on which the meeting is to
be held, to each stockholder of record entitled to vote at such meeting by
delivering a written or printed notice thereof to him personally, or by mailing
at least fourteen days before the day on which such meeting is to be held, such
notice in a postage prepaid envelope addressed to him at his post office
address furnished by him to the Secretary of the Corporation for such purpose,
or, if he shall not have furnished to the Secretary of the Corporation his
address for such purpose, then at his post office address last known to the
Secretary of the Corporation, or by transmitting a notice thereof to him at
such address by telegraph, cable, radio or wireless. Except where expressly
required by law, no publication of any notice of a meeting of stockholders
shall be required. Every such notice shall state the time and place of the
meeting but need not state the purposes thereof except as otherwise in these
by-laws expressly provided and except in special cases where other provision is
made by statute. Notice of any meeting of stockholders shall not be required
to be given to any stockholder who shall attend such meeting in person or by
proxy; and if any stockholder shall, in person or by
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attorney thereunto authorized, in writing or by telegraph, cable, radio or
wireless waive notice of any meeting, whether before or after such meeting be
held, notice thereof need not be given to him. Notice of any adjourned meeting
of the stockholders shall not be required to be given, except where expressly
required by law.
Section 5. List of Stockholders. It shall be the duty of the
Secretary or other officer who shall have charge of the stock ledger either
directly or through a Transfer Agent appointed by the Board of Directors, to
prepare and make, at least ten days before every election, complete lists of
the stockholders entitled to vote thereat, arranged in alphabetical order, the
holders of Common Stock and Preferred Stock appearing separately, and
indicating the number of shares held by each certified by the Secretary or
Transfer Agent. For said ten days such lists shall be open to the examination
of any stockholder at the place where said election is to held, and shall
be-produced and kept at the time and place of the election during the whole
time thereof, and subject to the inspection of any stockholder who may be
present. Upon the wilful neglect or refusal of the directors to product such
lists at any election, they shall be ineligible to any office at such election.
The original or a duplicate stock ledger shall be the only evidence as to who
are the stockholders entitled to examine such lists or the books of the
Corporation or to vote in person or by proxy at such election.
Section 6. Quorum. At each meeting of the stockholders, the holders
of the majority of the issued and outstanding stock of the Corporation present
either in person or by proxy and entitled to vote at such meeting shall
constitute a quorum for the transaction of business except where otherwise
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provided by law or by the Certificate of Incorporation. In the absence of a
quorum, the stockholders of the Corporation present in person or by proxy and
entitled to vote, by majority vote, or, in the absence of all the stockholders,
any officer entitled to preside or act as Secretary at such meeting, shall have
the power to adjourn the meeting from time to time, until stockholders holding
the requisite amount of stock shall be present or represented. At any such
adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as originally
called. The absence from any meeting of the number required by the laws of the
State of Delaware or by the Certificate of Incorporation of the Corporation or
by these by-laws for action upon any given matter shall not prevent action at
such meetings upon any other matter or matters which may properly come before
the meeting, if the number of stockholders required in respect of such other
matter or matters shall be present.
Section 7. Organization. The Chairman of the Board, or in his
absence the Vice-Chairman, or in the absence of both the President, shall call
meetings of the stockholders to order and shall act as Chairman thereof. In
the absence of the Chairman of the Board, Vice-Chairman and President, the
holders of a majority in interest of the stock present in person or by proxy
and entitled to vote, may elect any person present to act as Chairman of the
meeting. The Secretary, or, in his absence, an Assistant Secretary, shall act
as secretary at all meetings of the stockholders. In the absence from any such
meeting of the Secretary and the assistant secretary or secretaries, the
Chairman may appoint any person present to act as secretary of the meeting.
Such person shall be sworn to the
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faithful discharge of his duties as such secretary of the meeting before
entering thereon.
Section 8. Business and Order of Business. At each meeting of the
stockholders such business may be transacted as may properly be brought before
such meeting, whether or not such business is stated in the notice of such
meeting or in a waiver of notice thereof except as otherwise in these by-laws
expressly provided. The order of business at all meetings of the stockholders
shall be as determined by the Chairman, subject to the approval of a majority
in interest of the stockholders present in person or by proxy at such meeting
and entitled to vote thereat.
Section 9. Voting. Each stockholder of the Corporation shall, except
as otherwise provided by law or in these by-laws or in the Certificate of
Incorporation of the Corporation, at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
of the Corporation registered in his name on the books of the Corporation
(1) on the date fixed pursuant to Section 6 of Article VII of
these by-laws as the record date for the determination of
stockholders entitled to vote at such meeting; or
(2) if no such record date shall have been fixed, then at the date
of such meeting; provided, however, that in this event, unless
the stock transfer books shall have been closed as provided in
said Section 6 of said Article VII, no share of stock of the
Corporation which shall have been transferred on the books of
the Corporation
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within 20 days next preceding any such meeting at which
directors shall be elected shall be voted in such election.
Shares of its own capital stock belonging to the Corporation shall not be voted
upon directly or indirectly. Persons holding in a fiduciary capacity stock
having voting rights shall be entitled to vote the shares so held, and persons
whose stock having voting rights is pledged shall be entitled to vote, unless
in the transfer by the pledgor on books he shall have expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent said stock and vote thereon. Any vote on stock may be given by the
stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, and delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted on after three years from its date unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except those specified in Sections 2 and 12 of Article III and
Article XI of these by-laws, and except also in special cases where other
provision is made by statute, and except as otherwise provided in the
Certificate of Incorporation) shall be decided by the vote of a majority in
interest of the stockholders present in person or by proxy and entitled to vote
thereat, a quorum being present. Except as otherwise provided by statute, and
unless demanded by a stockholder present in person or by proxy at any meeting,
and entitled to vote thereat, the vote on any question need not be by ballot.
Upon a demand for a vote by ballot, upon any question by any stockholder
entitled to vote thereon, present in person or by proxy at any meeting and
entitled to vote thereat, such a vote shall immediately be taken.
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Section 10. Notice of Stockholder Business. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
brought before the meeting (a) by or at the direction of the Board of Directors
or (b) by any stockholder of the Corporation who complies with the notice
procedures set forth in this Section 10. 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 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 120 calendar
days in advance of the date of the Corporation's proxy statement released to
shareowners in connection with the previous year's annual meeting of
shareowners. A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) 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, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder and (d) any
material interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section 10. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
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before the meeting and in accordance with the provisions of this Section 10,
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.
ARTICLE III.
Board of Directors.
Section 1. General Powers. The property, affairs and business of the
Corporation shall be managed by the Board of Directors.
Section 2. Number, qualifications, election and terms of office. The
number of Directors shall be not less than seven nor more than sixteen, as
determined from time to time by resolution of the Board of Directors. The
Directors need not be stockholders of the corporation. The election of
Directors need not be by ballot except as otherwise provided by law or by the
By-Laws.
"Section 3. Quorum and Manner of Action. A majority of the whole
number of Directors shall be required to constitute a quorum for the
transaction of business at any meeting and the act of a majority of the
Directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors. In the absence of a quorum the majority of the
Directors present may adjourn the meeting from time to time until a quorum be
had. Notice of any adjourned meeting need not be given, otherwise than by
announcement at the meeting being adjourned."
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Section 4. Place of Meeting, etc. The Board of Directors may hold
its meetings, have one or more offices, and keep the books and records of the
Corporation, at such place or places within or without the State of Delaware as
the Board of Directors may from time to time determine or as shall be specified
or fixed in the respective notices or waivers of notice thereof.
Section 5. First Meeting. After each annual election of directors
and within a reasonable time thereafter, the Board of Directors shall meet for
the purpose of organization, the election of officers and the transaction of
other business at the same hour and place at which regular meetings of the
Board of Directors are held. Notice of such meeting shall be given as
hereinafter provided for special meetings of the Board of Directors or in a
consent and waiver of notice thereof signed by all the directors.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held quarterly at such place and at such times as the Board
of Directors shall from time to time by resolution determine. If any day fixed
for a regular meeting shall be a legal holiday at the place where the meeting
is to be held at the same hour on the next succeeding business day not a legal
holiday. Notice of the regular meetings need not be given.
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Section 7. Special Meetings; Notice. Special meetings of the Board
of Directors shall be held whenever called by the Chairman of the Board of
Directors or by the President or by one of the directors. Notice of each
meeting shall be mailed to each director, addressed to him at his residence or
usual place of business, at least two days before the day on which the meeting
is being held, or shall be sent to him at such place by telegraph, cable, radio
or wireless, or be delivered personally or by telephone, not later than the day
before the day on which the meeting is to held. Every such notice shall state
the time and place of the meeting but need not state the purposes thereof
except as otherwise in these by-laws or by statute expressly provided. Notice
of any meeting of the Board of Directors need not be given to any director,
however, if waived by him in writing or by telegraph, cable, radio or wireless
whether before or after such meeting be held or if he shall be present at the
meeting; and any meeting of the Board of Directors shall be a legal meeting
without any notice thereof having been given if all of the directors shall be
present thereat.
Section 8. Organization. At each meeting of the Board of Directors,
the Chairman of the Board of Directors, or, in his absence, the President, or
in the absence of both the Chairman of the Board of Directors and the
President, a director chosen by a majority of the directors present shall act
as Chairman. The Secretary, or, in his absence, an Assistant Secretary, or, in
the absence of both the Secretary and assistant secretaries, any person
appointed by the Chairman shall act as Secretary of the meeting. Such person
shall be sworn to the faithful discharge of his duties as Secretary of the
meeting before entering thereon.
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Section 9. Order of Business. At all meetings of the Board of
Directors business shall be transacted in the order determined by the Board of
Directors.
Section 10. Resignations. Any directors of the Corporation may
resign at any time by giving written notice to the Chairman of the Board of
Directors or to the President or to the Secretary of the Corporation. The
resignation of any director shall take effect at the time of the receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 11. Removal of Directors. Any director may be removed either
with or without cause, at any time after three years from the date of
incorporation of this Corporation, by the affirmative vote of a majority in
interest of the holders of record of the stock having voting power at a special
meeting of the stockholders called for the purpose; and the vacancy in the
Board of Directors caused by any such removal may be filled by the stockholders
at such meeting.
Section 12. Vacancies. After the expiration of three years from the
date of incorporation of this Corporation any vacancy in the Board of Directors
caused by death, resignation, removal, disqualification, an increase in the
number of directors, or any other cause may be filled by the directors then in
office or by the stockholders of the Corporation at the next annual meeting or
any special meeting called for the purpose and at which a quorum is present,
and each director so elected, shall hold office for a term to expire
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at the next annual election of directors, and until his successor shall be duly
elected and qualified, or until his death or until he shall resign or shall
have been removed in the manner therein provided. In case of a vacancy in the
Board of Directors, the remaining directors shall continue to act, but if at
any time the number of directors in office shall be reduced to less than a
majority of the number necessary to constitute a full Board of Directors the
remaining directors shall forthwith call a special meeting of the stockholders
for the purpose of filling vacancies. In case all the directors shall die or
resign or be removed or disqualified, any stockholder having voting power may
call a special meeting of the stockholders, upon notice given as herein
provided for meetings of the stockholders, at which directors for the unexpired
term may be elected.
Section 13. Fees. Each director shall be paid such fee, if any, as
shall be fixed by the Board of Directors, for each meeting of the Board of
Directors which he shall attend and in addition such transportation and other
expenses actually incurred by him in going to the meeting and returning
therefrom as the Board of Directors shall approve.
Section 14. Notice of Stockholders Nominees. Only persons who are
nominated in accordance with the procedures set forth in the By-Laws shall be
eligible for election as Directors. Nominations of persons for election to the
Board of Directors of the Corporation may be made at a meeting of stockholders
(a) by or at the direction of the Board of Directors or (b) by any beneficial
owner of at least $1,000 in current value of shares of the Corporation entitled
to be voted for the election of Directors at the meeting who complies with the
notice procedures set forth in this Section 14. Nominations
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by stockholders shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal executive offices of
the Corporation not less than 120 calendar days in advance of the date of the
Corporation's proxy statement released to shareowners in connection with the
previous year's annual meeting of shareowners. Such stockholder's notice shall
set forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a Director, all information relating to such person
that is required to be disclosed in solicitation of proxies for election of
Directors, or is otherwise required, in each case pursuant to regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the Corporation's books, of
such stockholder and (ii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder. At the request of the Board
of Directors any person nominated by the Board of Directors for election as a
Director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth in the
By-Laws. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with
the procedures
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prescribed in this Section 14, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE IV.
Committees.
Section 1. How Constituted, Powers, Name. The Board of Directors
may, by resolution or resolutions, passed by a majority of the whole board,
designate one or more committees, each committee to consist of two or more of
the directors of the Corporation, which, to the extent provided in said
resolution or resolutions or in these by-laws, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, and may have power to authorize the seal of the Corporation
to be affixed to all papers which may require it. Such committee or committees
shall have such name or names as may be stated in these by-laws or as may be
determined from time to time by resolution adopted by the Board of Directors.
The term "Committee" as used in this Article IV means any committee constituted
pursuant to the Certificate of Incorporation of the Corporation and these by-
laws.
Section 2. Term of Office and Vacancies. Each member of a Committee
shall continue in office until the first meeting of the Board of Directors
following the annual meeting of stockholders held by the Board of Directors
next succeeding his election and until a director to succeed him shall have
been elected and shall have qualified, or until his death or until he shall
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have resigned or shall have been removed in the manner hereinafter provided.
Any vacancy in a Committee shall be filled by the vote of a majority of the
whole Board of Directors at any regular or special meeting thereof.
Section 3. Organization. The Chairman of each Committee shall be
designated by the Board of Directors and the Secretary of the Corporation shall
act as Secretary thereof. In the absence from any meeting of any Committee of
its Chairman or its Secretary such Committee shall appoint a Chairman or
Secretary, as the case may be, of the meeting. Each Committee shall keep a
record of its acts and proceedings and report the same from time to time to the
Board of Directors.
Section 4. Resignations. Any member of a Committee may resign at any
time by giving written notice to the Chairman of the Board of Directors, to the
President, or to the Secretary of the Corporation. Such resignation shall take
effect at the time of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Removal. Any member of a Committee may be removed with or
without cause at any time by the affirmative vote of a majority of the whole
Board of Directors given at any regular meeting or at any special meeting
called for the purpose.
Section 6. Meetings. Regular meetings of each Committee, of which no
notice shall be necessary, shall be held on such days and at such place as
shall be fixed by a resolution adopted by the vote of a majority of all the
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members of such Committee. Special meetings of each Committee may be called by
any member of such Committee. Notice of each special meeting of the Committee
shall be sent by mail to each member thereof, addressed to him at his residence
or usual place of business, not later than the day before the day on which the
meeting is to be held, or shall be sent to each such member by telegraph,
cable, radio or wireless, or delivered to him personally or by telephone, not
less than three (3) hours before the time set for the meeting. Every such
notice shall state the time and place, but need not state the purposes, of the
meeting. Notice of any such meeting need not be given to any member of a
Committee, however, if waived by him in writing or by telegraph, cable, radio,
or wireless, or if he shall attend such meeting in person, and any meeting of a
Committee shall be a legal meeting without any notice thereof having been given
if all of the members of the Committee shall be present thereat.
Section 7. Quorum and Manner of Acting. Unless otherwise provided by
resolution of the Board of Directors, a majority of a Committee shall
constitute a quorum for the transaction of business and the act of a majority
of those present at a meeting at which a quorum is present shall be the act of
such Committee. The members of each Committee shall act only as a committee
and the individual members shall have no power as such.
Section 8. Fees. Each member of a Committee shall be paid such fee,
if any, as shall be fixed by the Board of Directors, for each meeting of such
Committee which he shall attend, and in addition such transportation and other
expenses actually incurred by him in going to the meeting and returning
therefrom as the said Board of Directors or Committee shall approve.
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ARTICLE V.
Officers.
Section 1. Numbers. The officers of the Corporation shall be a
Chairman of the Board of Directors, a Vice-Chairman of the Board of Directors
if the Board so elects, a President, a Treasurer, a Secretary, one or more
Executive Vice Presidents if the Board so elects, one or more Senior Vice
Presidents if the Board so elects, and one or more Vice Presidents, Assistant
Treasurers, Assistant Secretaries, and such other officers as may be appointed
in accordance with the provisions of Section 3 of this Article. Any number of
offices may be held by the same person.
Section 2. Election, Term of Office and Qualifications. The officers
shall be elected annually by the Board of Directors. Each office, except such
officers as may be appointed in accordance with the provisions of Section 3 of
this Article, shall hold office until his successor shall have been duly
elected and qualified in his stead, or until his death or until he shall have
resigned or shall have been removed in the manner hereinafter provided. The
Chairman of the Board of Directors, and the President shall be chosen from
among the Directors. Other officers herein provided for need not be members of
the Board of Directors.
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Section 3. Subordinate Officers. The Board of Directors may from
time to time appoint such other officers or committees as it may deem
necessary, and the Board of Directors or the Chairman of the Board of Directors
or the President may from time to time appoint such agents and employees of the
Corporation as may be deemed proper. Such officers, committees, agents and
employees shall hold office for such period, have such authority, and perform
such duties as in these by-laws provided or as the Board of Directors or the
Chairman of the Board of Directors or the President may from time to time
prescribe. The Board of Directors or the Chairman of the Board of Directors or
the President may from time to time authorize any officer to appoint and remove
agents and employees and to prescribe the powers and duties thereof.
Section 4. Removal. An officer may be removed, either with or
without cause, by the vote of a majority of the whole Board of Directors at a
special meeting called for purpose or by any superior officer upon whom the
power of removal may be conferred by the Board of Directors or by these
by-laws.
Section 5. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to the Chairman of the Board
of Directors or to the President or to the Secretary. Any such resignation
shall take effect at the date of receipt of such notice or at any later time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 6. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
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the unexpired portion of the term in the manner prescribed in these by-laws for
regular election or appointment to such office.
Section 7. The Chairman of the Board of Directors. The Chairman of
the Board shall be a director and shall preside at all meetings of the Board
and of the stockholders. He shall be the chief executive officer of the
Corporation and ex-officio a member of all committees of the Board of Directors
and of the stockholders; may sign with the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary any or all certificates of stock of
the Corporation; may sign and execute in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation, and shall perform such other duties as may
be assigned to him from time to time by the Board of Directors. In case of the
absence or disability of the Chairman the Board of Directors may designate the
Vice-Chairman, President, a Senior Vice-President, Vice-President or other
person to act in place of the Chairman during his absence or disability, and
when so acting such Vice-Chairman, President, Senior Vice-President,
Vice-President or other person shall have all the powers of and be subject to
all the restrictions upon the Chairman, except as may otherwise be provided in
the resolution of the Board of Directors making such designation.
Section 7.5. The Vice-Chairman of the Board of Directors. The Vice-
Chairman of the Board of Directors shall be a director and shall perform such
duties as may be assigned to him from
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time to time by the Board of Directors or the Chairman of the Board. In the
absence of the Chairman he shall preside at all meetings of the Board and of
the stockholders. He may sign with the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary any or all certificates of stock of the
Corporation; and may sign and execute in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation.
Section 8. The President. The President shall be a director and shall
perform such duties as may from time to time be assigned to him by the Board of
Directors, the Chairman of the Board, or an Executive Committee constituted
pursuant to Article IV of these By-Laws. He may sign with the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary any or all
certificates of stock of the Corporation; in the absence or inability to act of
the Chairman or Vice-Chairman of the Board shall preside at meetings of the
Board of Directors and of the stockholders; and may sign and execute in the
name of the Corporation all deeds, mortgages, bonds, contracts or other
instruments authorized by the Board of Directors, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the
Corporation.
Section 9. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive Vice President, each Senior Vice President and each
Vice President shall perform
<PAGE> 23
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such duties as may from time to time be assigned to him by the Board of
Directors, the Chairman of the Board, or an Executive Committee constituted
pursuant to Article IV of these By-Laws. He may also sigh with the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary any or all
certificates of stock of the Corporation.
Section 10. Vice-President. REPEALED.
Section 11. The Secretary. The Secretary shall be sworn to the
faithful discharge of his duties; shall keep or cause to be kept in books
provided for the purpose the minutes of the meetings of the stockholders, of
the Board of Directors and any Committee constituted pursuant to Article IV of
these by-laws; shall see that all notices are duly given in accordance with the
provisions of these by-laws and as required by law; shall be custodian of the
records and of the seal of the Corporation and see that the seal is affixed to
all documents the execution of which on behalf of the Corporation under its
seal is duly authorized in accordance with the provisions of these by-laws;
shall keep a register of the post office address of each stockholder, and make
all proper changes in such register, retaining and filing his authority for all
such entries; shall see that the books, reports, statements, certificates and
all other documents and records required by law are properly kept and filed;
may sign with the Chairman of the Board, Vice-Chairman, President, a Senior
Vice-President or a Vice-President any or all certificates of stock of the
Corporation; and in general, the Secretary shall perform all duties
<PAGE> 24
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incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board of Directors, the Chairman of the Board, or
any Committee constituted pursuant to Article IV of these By-Laws with power
for the purpose.
Section 12. Assistant Secretaries. At the request of the Secretary
or in his absence or disability the Assistant Secretary designated by him shall
perform all 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. The
Assistant Secretaries shall perform such other duties as from time to time may
be assigned to them by the Chairman of the Board of Directors, the President,
the Secretary or the Board of Directors or any Committee constituted pursuant
to Article IV of these by-laws with power for the purpose, and shall be sworn
to the faithful discharge of their duties.
Section 13. The Treasurer. The Treasurer shall give such bond for
the faithful performance of his duties as the Board of Directors shall require.
He shall have charge and custody of, and be responsible for, all funds and
securities of the Corporation, and deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of these by-laws; at all reasonable
times exhibit his books of account and records, and cause to be exhibited the
books of account and records of any corporation all of whose stock except
directors' shares is owned by the Corporation, to any of the directors of the
Corporation upon application during business hours at the office of the
Corporation or such other corporation, where such books and records are kept;
render a statement of the condition of the finances of the Corporation at all
<PAGE> 25
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regular meetings of the Board of Directors, and a full financial report
at the annual meeting of the stockholders, if called upon to do so; receive,
and give receipts for, moneys due and payable to the Corporation from any
source whatsoever; sign with the Chairman of the Board, Vice-Chairman,
President, a Senior Vice-President or a Vice-President any or all certificates
of stock of the Corporation; and in general, perform all duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors, the Chairman of the Board, or any Committee
constituted pursuant to Article IV of these By-Laws with power for the purpose.
Section 14. Assistant Treasurers. At the request of the Treasurer or
in his absence or disability the Assistant Treasurer designated by him shall
perform all 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. The
Assistant Treasurers shall perform such other duties as from time to time may
be assigned to them by the Chairman of the Board of Directors, the President,
the Treasurer or the Board of Directors or any Committee constituted pursuant
to Article IV of these by-laws with power for the purpose.
Section 15. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors. No officer shall be prevented
from receiving such salary by reason of the fact that he is also a director of
the Corporation.
Section 16. Indemnification of Directors and Officers. "The
corporation shall, to the extent provided
<PAGE> 26
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in this Section, indemnify any person who is or was a director or officer of
the corporation, or who serves or served at the request of the corporation as a
director or officer of any other corporation, against any liabilities and
reasonable expenses, paid or incurred by him in connection with any actual or
threatened claim, suit or proceeding (whether brought by or in the right of the
corporation or such other corporation or otherwise), civil, criminal,
administrative or investigative, in which he may be involved, as a party or
otherwise, by reason of his being or having been a director or officer of the
corporation, whether or not he continues to be such at the time such expense or
liability shall have been paid or incurred. As used in this Section, the term
"director or officer" shall include the heirs, executors, and administrators,
as such, of any director or officer; the term "expenses" shall include counsel
fees and disbursements and all other expenses (other than liabilities) relating
to such claim, action, suit or proceeding; and the term "liabilities" shall
mean judgments, fines, penalties and amounts paid as settlements with respect
to any such claim, action, suit or proceeding.
"There shall be no indemnification as to matters in respect of which such
director or officer shall be finally adjudged to be guilty of conduct amounting
to bad faith in the performance of his duties to the corporation or such other
corporation or, in the case of any criminal action or proceeding, of conduct
which he lacked reasonable cause for believing to be lawful.
"Any person referred to in the first paragraph of this Section shall be
entitled, as of right, to the indemnification provided in the first paragraph
of this Section: (i) with respect to any claim, action, suit or proceeding as
<PAGE> 27
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to which he has been wholly successful, on the merits or otherwise, or (ii)
except as provided in the second paragraph of this Section, with respect to
matters as to which a court or Referee shall have determined that he acted in
good faith for a purpose which he reasonable believed to be in the best
interests of the corporation or such other corporation, and in addition with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was lawful. Any such determination may be made with respect
to some matters involved in any claim, action, suit or proceeding even though
it is not made as to all matters. The termination of any claim, action, suit
or proceeding by judgment, settlement (whether with or without court approval),
adverse decision, or conviction after trail or upon a plea of guilty or of nolo
contendere or its equivalent, shall not of itself create a presumption that a
director or officer did not meet the foregoing standards of conduct. The
person claiming indemnification shall, at the request of the Referee, appear
before him and answer questions which the Referee deems relevant and shall be
given ample opportunity to present to the Referee evidence upon which he relies
for indemnification, and the corporation shall, at the request of the Referee,
make available to the Referee facts, opinions, or other evidence within the
possession or control of the corporation which may be relevant to his findings.
As used in this Section, the term "Referee" shall mean independent legal
counsel (who may be regular counsel to the corporation) or other disinterested
person or persons selected to act as such hereunder by the Board of Directors
of the corporation, whether or not a disinterested quorum exists.
"Any expense incurred with respect to any actual or threatened claim, action,
suit or proceeding, may be advanced by the corporation to, or where appropriate
the corporation may itself at its expense undertake the defense of, any
<PAGE> 28
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such officer or director, provided that he shall have undertaken to repay such
amount if it is ultimately determined that he is not entitled to
indemnification.
"The rights of indemnification provided in this Section shall be in addition
to, and not exclusive of any rights to which any such director or officer may
otherwise be entitled by contract or as a matter of law."
ARTICLE VI.
Contracts, Checks, Drafts, Bank Accounts, etc.
Section 1. Contracts, etc., How Executed. The Board of Directors, or
any Committee constituted pursuant to Article IV of these by-laws with power
for the purpose, except as in these by-laws otherwise provided, may authorize
any officer or officers, agent or agents, of the Corporation to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to specific
instances: and, unless so authorized by the Board of Directors or by such
Committee or by these by-laws, no officer, agent or employee shall have any
power or authority to bind the Corporation by any contract or agreement or to
pledge its credit or to render it liable pecuniarily for any purpose or to any
amount.
Section 2. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized
<PAGE> 29
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by the Board of Directors or by any Committee constituted pursuant to Article
IV of these by-laws with power for the purpose. When so authorized, the
Chairman of the Board of Directors or the President or a Vice-President and the
Secretary or the Treasurer of the Corporation may effect loans and advances at
any time for the Corporation from any bank, trust company or other institution,
or from any firm, corporation or individual, and for such loans and advances
may make, execute and deliver promissory notes or other evidences of
indebtedness of the Corporation and, when authorized as aforesaid, as security
for the payment of any and all loans, advances, indebtedness and liabilities of
the Corporation, may mortgage, pledge, hypothecate or transfer any real or
personal property at any time held by the Corporation and to that end execute
instruments of mortgage or pledge or otherwise transfer such property. Such
authority may be general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by such officer or officers,
employee or employees, of the Corporation as shall from time to time be
determined by resolution of the Board of Directors or by any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose.
Section 4. Deposits. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositaries as the Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
may from time to time designate, or as may be designated by an officer or
officers of the Corporation to whom such power may be delegated by the Board
<PAGE> 30
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of Directors, or by such Committee, and for the purpose of such deposit, the
Chairman of the Board of Directors, or the President, or a Vice-President, or
the Treasurer, or an Assistant Treasurer, or the Secretary, or an Assistant
Secretary, may endorse, assign and deliver checks, drafts, and other orders for
the payment of money which are payable to the order of the Corporation.
Section 5. General and Special Bank Accounts. The Board of Directors
or any Committee constituted pursuant to Article IV of these by-laws with power
for the purpose, may from time to time authorize the opening and keeping with
such banks, trust companies or other depositaries as it may designate of
general and special bank accounts, may make such special rules and regulations
with respect thereto, not inconsistent with the provisions of these by-laws, as
it may deem expedient.
Section 6. Proxies. Except as otherwise in these by-laws or in the
Certificate of Incorporation of the Corporation provided, and unless otherwise
provided by resolution of the Board of Directors, or of any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose,
the Chairman of the Board of Directors or the President may from time to time
appoint an attorney or attorneys or agent or agents, of the Corporation, in the
name and on behalf of the Corporation to cast the votes which the Corporation
may be entitled to cast as a stockholder or otherwise in any other corporation
any of whose stock or other securities may be held by the Corporation, at
meetings of the holders of the stock or other securities of such other
corporation, or to consent in writing to any action by such other corporation,
and may instruct the person or persons so appointed as to the manner of casting
such votes or giving such consent, and may execute or cause
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to be executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
ARTICLE VII.
Shares and Their Transfer.
"Section 1. Certificates of Stock. Certificates for shares of the
capital stock of the Corporation shall be in such form as shall be approved by
the Board of Directors or by any Committee constituted pursuant to Article IV
of these By-Laws with power for the purpose. They shall be numbered, shall
certify the number of shares held by the holder thereof and shall be signed by
the Chairman of the Board or the President or a Vice-President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, and the seal of the Corporation shall be affixed thereto,
provided that where any such certificate is signed by a transfer agent or an
assistant transfer agent or by a transfer clerk acting in behalf of the
Corporation and by a registrar, the signatures of any such Chairman of the
Board, President, Vice-President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary and the seal of the Corporation upon such certificate may
be facsimiles. In case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on, any such certificate
or certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation, or otherwise, before such certificate or
certificates shall have been delivered
<PAGE> 32
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by the Corporation, such certificate or certificates may nevertheless be
adopted by the Corporation and be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile
signature shall have been used thereon had not ceased to be such officer or
officers of the Corporation."
Section 2. Transfer of Stock. Transfers of shares of the capital
stock of the Corporation shall be made only on the books of the Corporation by
the holder thereof, or by his attorney thereunto authorized by a power of
attorney duly executed and filed with the Secretary of the Corporation, or a
transfer agent of the Corporation, if any, and on surrender of the certificate
or certificates for such shares properly endorsed. A person in whose name
shares of stock stand on the books of the Corporation shall be deemed the owner
thereof as regards to the Corporation, provided that whenever any transfer of
shares shall be made for collateral security, and not absolutely, such fact if
known to the Secretary or to said transfer agent, shall be so expressed in the
entry of transfer.
Section 3. Addresses of Stockholders. Each stockholder shall
designate to the Secretary of the Corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and if
any stockholder shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his last known post office address.
"Section 4. Lost, Destroyed and Mutilated Certificates. The holder
of any stock of the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate thereof,
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and the Board of Directors or any Committee constituted pursuant to Article IV
of these by-laws with power for the purpose, may, in its discretion, cause to
be issued to him a new certificate or certificates of stock, upon the surrender
of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and, the Board
of Directors or such Committee may, in its discretion, require the owner of the
lost or destroyed certificate or his legal representative to give the
Corporation a bond in such sum, and with surety or sureties, as it may direct,
to indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or destruction of any such certificate."
Section 5. Transfer Agent and Registrar; Regulations. The
Corporation shall, if and whenever the Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
shall so determine, maintain one or more transfer offices or agencies, each in
charge of a transfer agent designated by the Board of Directors or by such
Committee, where the shares of the capital stock of the Corporation shall be
directly transferable, and also one or more registry offices, each in charge of
a register designated by the Board of Directors or by such Committee, where
such shares of stock shall be registered, and no certificate for shares of the
capital stock of the Corporation, in respect of which a registrar and transfer
agent shall have been designated, shall be valid unless countersigned by such
transfer agent and registered by such registrar. The Board of Directors or any
such Committee may also make such additional rules and regulations as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of the capital stock of the Corporation.
<PAGE> 34
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Section 6. Closing of Transfer Books. The Board of Directors or any
Committee constituted pursuant to Article IV of these by-laws with power for
the purpose may, by resolution, direct that the stock transfer books of the
Corporation be closed for a period not exceeding sixty days preceding the date
of any meeting of stockholders or 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; provided, however, that in
lieu of closing the stock transfer books as aforesaid, the Board of Directors
or any such Committee may fix in advance a date, not exceeding sixty days
preceding the date of any meeting of stockholders, or 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 such stockholders entitled to notice of,
and to vote at, any such meeting or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any change, conversion or exchange of the capital stock, and in each
such case only such stockholders of record on the date so fixed shall be
entitled to notice of, or to vote at, such meeting, or to receive payment of
such dividend, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding and transfer of any stock on the
books of the Corporation after such record date as aforesaid.
Section 7. Examination of Books by Stockholders. The Board of
Directors or any Committee constituted pursuant to Article IV of these by-laws
with power for the purpose shall, subject to the laws of the State of Delaware,
have power to determine, from time to time, whether and to what extent and
<PAGE> 35
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under what conditions and regulations the accounts and books of the
Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any book or
document of the Corporation, except as conferred by the laws of the State of
Delaware, unless and until authorized so to do by resolution of the Board of
Directors or any Committee constituted pursuant to Article IV of these by-laws
with power for the purpose or of the stockholders of the Corporation.
Section 8. Treasury Shares. The Treasurer of this Corporation may be
authorized by the Board of Directors from time to time, to purchase out of
surplus any outstanding fully paid shares of this Corporation, together with
any rights, privileges and benefits appurtenant thereto, the same to be held in
the treasury of this Corporation until and unless disposed of as hereinafter
set forth. The price at which the same may be purchased and placed in the
treasury shall not exceed such sum as the Board of Directors may determine from
time to time. Any shares so purchased and placed in the treasury of this
Corporation may be sold in such manner and on such terms as the Board of
Directors may determine from time to time.
<PAGE> 36
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ARTICLE VIII.
Dividends, Surplus, etc.
Subject to the provisions of the Certificate of Incorporation and any
restrictions imposed by statute, the Board of Directors may declare dividends
from the surplus of the Corporation or from the net profits arising from its
business, whenever, and in such amounts as, in its opinion, the condition of
the affairs of the Corporation shall render advisable. If the date appointed
for the payment of any dividend shall in any year fall on a legal holiday then
the dividend payable on such date shall be payable on the next succeeding
business day. The Board of Directors in its discretion may from time to time
set aside from such surplus or net profits such sum or sums as it, in its
absolute discretion, may think proper as a working capital or as a reserve fund
to meet contingencies, or for the purpose of maintaining or increasing the
property or business of the Corporation, or for any other purpose it may think
conducive to the best interests of the Corporation. All such surplus or net
profits, until actually declared in dividends, or used and applied as
aforesaid, shall be deemed to have been so set aside by the Board for one or
more of said purposes.
ARTICLE IX.
Seal.
The corporate seal of the Corporation shall consist of a metallic stamp,
circular in form, bearing in its center the figures and word "1930, Delaware",
and at the outer edge the name of the Corporation.
<PAGE> 37
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ARTICLE X.
Fiscal Year.
The fiscal year of the Corporation shall begin on the first day of January in
each year.
ARTICLE XI.
Amendments.
All by-laws of the Corporation shall be subject to alteration or repeal, and
new by-laws not inconsistent with any provision of the Certificate of
Incorporation of the Corporation or any provision of law, may be made, either
by the affirmative vote of the holders of record of a majority of the
outstanding stock of the Corporation entitled to vote in respect thereof, given
at an annual meeting or at any special meeting or by the Board of Directors at
any regular or special meeting; provided, however, that the by-laws of the
Corporation shall not be subject to alteration, amendment or repeal for a
period of three years from and after the date of incorporation, except by the
affirmative vote of the holders of record of two-thirds (2/3) of the
outstanding stock of the Corporation entitled to vote in respect thereof, and a
resolution of the Board of Directors consenting to such alteration, amendment
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or repeal, which consent shall be in addition to all other requirements
necessary for the accomplishment of any such alteration, amendment or repeal.
