=================================================================
KO TRANSMISSION COMPANY
---------
BY-LAWS
---------
========================================================================
Adopted: May 20, 1994
Amended by Shareholders: October 24, 1994
Amended by Shareholders: June 16, 1995
Amended by Shareholders: May 8, 1996
Amended Effective: July 24, 1997
Amended by Shareholders: May 28, 1999
<PAGE>
TABLE OF CONTENTS
BY-LAWS
KO TRANSMISSION COMPANY
ARTICLE I
Offices Page
Section 1. Offices.....................................................1
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting..............................................1
2. Notice of Annual Meeting....................................1
3. Special Meetings............................................1
4. Notice of Special Meeting...................................1
5. Waiver of Notice............................................1
6. Quorum......................................................1
7. Voting......................................................2
8. Written Consent of Shareholders in Lieu of Meeting..........2
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies......................2
2. Annual Organization Meeting.................................3
3. Regular Meetings............................................3
4. Special Meetings............................................3
5. Notice of Meetings..........................................3
6. Quorum......................................................3
7. Compensation of Directors...................................3
8. Executive Committee.........................................3
9. Other Committees............................................4
10. Actions of Board............................................4
ARTICLE IV
Officers
Section 1. Officers....................................................4
2. Subordinate Officers........................................4
3. Chairman of the Board.......................................4
4. Vice Chairman...............................................5
5. Chief Executive Officer.....................................5
6. Chief Operating Officer.....................................5
7. President...................................................5
8. Vice Presidents.............................................5
i
<PAGE>
Page
9.(a). Secretary...................................................5
9.(b). Assistant Secretaries.......................................5
10.(a). Treasurer...................................................6
10.(b). Assistant Treasurers........................................6
11.(a). Comptroller.................................................6
11.(b). Assistant Comptrollers......................................6
ARTICLE V
Indemnification of Directors, Officers,
Employees, and Agents
Section 1. Definitions.................................................7
2. Indemnification.............................................7
3. Mandatory Indemnification...................................8
4. Advance for Expenses........................................8
5. Determination and Authorization of Indemnification..........9
6. Indemnification of Officers, Employees, and Agents.........10
7. Insurance..................................................10
8. Application of this Article................................10
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates.........................10
2. Transfer of Shares.........................................11
3. Appointment of Transfer Agents and Registrars..............11
4. Closing of Transfer Books or Taking
Record of Shareholders.....................................11
5. Lost Stock Certificates....................................11
ARTICLE VII
Dividends
Section 1. Dividends..................................................11
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year................................................12
ARTICLE IX
Contracts,
Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc..............................12
ii
<PAGE>
ARTICLE X
Notice and Waiver of Notice Page
Section 1. Notice and Waiver of Notice................................12
ARTICLE XI
Amendment
Section 1. Amendment..................................................12
iii
<PAGE>
BY-LAWS
OF
KO TRANSMISSION COMPANY
ARTICLE I
OFFICES
SECTION 1. OFFICES. THE REGISTERED OFFICE OF THE CORPORATION SHALL BE
LOCATED IN THE CITY OF LOUISVILLE, JEFFERSON COUNTY, COMMONWEALTH OF
KENTUCKY. THE CORPORATION MAY ESTABLISH BRANCH OFFICES AND CONDUCT AND
CARRY ON BUSINESS AT SUCH OTHER PLACES WITHIN OR WITHOUT THE COMMONWEALTH
OF KENTUCKY AS THE BOARD OF DIRECTORS MAY FROM TIME TO TIME FIX OR
DESIGNATE, AND ANY BUSINESS CONDUCTED OR CARRIED ON AT SUCH OTHER PLACE OR
PLACES SHALL BE AS BINDING AND EFFECTUAL AS IF TRANSACTED AT THE REGISTERED
OFFICE OF THE CORPORATION.
ARTICLE II
SHAREHOLDERS' MEETINGS
SECTION 1. ANNUAL MEETING. THE ANNUAL MEETING OF THE SHAREHOLDERS MAY
BE HELD EITHER WITHIN OR WITHOUT THE COMMONWEALTH OF KENTUCKY, AT SUCH
PLACE, TIME, AND DATE DESIGNATED BY THE BOARD OF DIRECTORS, FOR THE
ELECTION OF DIRECTORS, THE CONSIDERATION OF THE REPORTS TO BE LAID BEFORE
THE MEETING AND THE TRANSACTION OF SUCH OTHER BUSINESS AS MAY BE BROUGHT
BEFORE THE MEETING.
SECTION 2. NOTICE OF ANNUAL MEETING. NOTICE OF THE ANNUAL MEETING
SHALL BE GIVEN IN WRITING TO EACH SHAREHOLDER ENTITLED TO VOTE THEREAT, AT
SUCH ADDRESS AS APPEARS ON THE RECORDS OF THE CORPORATION AT LEAST TEN (10)
DAYS, AND NOT MORE THAN FORTY (40) DAYS PRIOR TO THE MEETING.
SECTION 3. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE SHAREHOLDERS MAY
BE CALLED AT ANY TIME BY THE CHAIRMAN, VICE CHAIRMAN, CHIEF EXECUTIVE
OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, OR BY A MAJORITY OF THE
MEMBERS OF THE BOARD OF DIRECTORS ACTING WITH OR WITHOUT A MEETING OR BY
THE PERSONS WHO HOLD IN THE AGGREGATE ONE-FIFTH OF ALL THE SHARES
OUTSTANDING AND ENTITLED TO VOTE THEREAT, UPON NOTICE IN WRITING, STATING
THE TIME, PLACE AND PURPOSE OF THE MEETING. BUSINESS TRANSACTED AT ALL
SPECIAL MEETINGS SHALL BE CONFINED TO THE OBJECTS STATED IN THE CALL.
SECTION 4. NOTICE OF SPECIAL MEETING. NOTICE OF A SPECIAL MEETING, IN
WRITING, STATING THE TIME, PLACE AND PURPOSE THEREOF, SHALL BE GIVEN TO
EACH SHAREHOLDER ENTITLED TO VOTE THEREAT, NOT LESS THAN TEN (10) NOR MORE
THAN THIRTY-FIVE (35) DAYS AFTER THE RECEIPT OF SAID REQUEST.
SECTION 5. WAIVER OF NOTICE. NOTICE OF ANY SHAREHOLDERS' MEETING MAY
BE WAIVED IN WRITING BY ANY SHAREHOLDER AT ANY TIME BEFORE OR AFTER THE
MEETING.
SECTION 6. QUORUM. AT ANY MEETING OF THE SHAREHOLDERS, THE HOLDERS OF
A MAJORITY OF THE SHARES OF STOCK OF THE CORPORATION, ISSUED AND
OUTSTANDING, AND ENTITLED TO VOTE, PRESENT IN PERSON OR BY PROXY, SHALL
CONSTITUTE A QUORUM FOR ALL PURPOSES, UNLESS OTHERWISE SPECIFIED BY LAW OR
THE ARTICLES OF INCORPORATION.
IF, HOWEVER, SUCH MAJORITY SHALL NOT BE PRESENT OR REPRESENTED AT ANY
MEETING OF THE SHAREHOLDERS, THE SHAREHOLDERS ENTITLED TO VOTE, PRESENT IN
PERSON OR BY PROXY, SHALL HAVE POWER TO ADJOURN THE MEETING FROM TIME TO
TIME WITHOUT FURTHER NOTICE, OTHER THAN BY ANNOUNCEMENT AT THE MEETING,
UNTIL THE REQUISITE AMOUNT OF VOTING STOCK SHALL BE PRESENT. AT ANY SUCH
ADJOURNED MEETING, AT WHICH A QUORUM SHALL BE PRESENT, ANY BUSINESS MAY BE
TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING AS ORIGINALLY
CALLED.
SECTION 7. VOTING. AT ANY MEETING OF THE SHAREHOLDERS, EVERY
SHAREHOLDER HAVING THE RIGHT TO VOTE SHALL BE ENTITLED TO VOTE IN PERSON,
OR BY PROXY APPOINTED BY AN INSTRUMENT IN WRITING SUBSCRIBED BY SUCH
SHAREHOLDER AND BEARING A DATE NOT MORE THAN ELEVEN (11) MONTHS PRIOR TO
SAID MEETING, UNLESS SOME OTHER DEFINITE PERIOD OF VALIDITY SHALL BE
EXPRESSLY PROVIDED THEREIN.
EACH SHAREHOLDER SHALL HAVE ONE (1) VOTE FOR EACH SHARE OF STOCK
HAVING VOTING POWER, REGISTERED IN HIS OR HER NAME ON THE BOOKS OF THE
CORPORATION, AT THE DATE FIXED FOR DETERMINATION OF PERSONS ENTITLED TO
VOTE AT THE MEETING OR, IF NO DATE HAS BEEN FIXED, THEN AT THE DATE OF THE
MEETING. CUMULATIVE VOTING SHALL BE PERMITTED ONLY AS EXPRESSLY REQUIRED BY
STATUTE.
A COMPLETE LIST OF SHAREHOLDERS ENTITLED TO VOTE AT THE SHAREHOLDERS'
MEETINGS, ARRANGED IN ALPHABETICAL ORDER, WITH THE ADDRESS AND THE NUMBER
OF VOTING SHARES HELD BY EACH, SHALL BE PRODUCED ON THE REQUEST OF ANY
SHAREHOLDER, AND SUCH LIST SHALL BE PRIMA FACIE EVIDENCE OF THE OWNERSHIP
OF SHARES AND OF THE RIGHT OF SHAREHOLDERS TO VOTE, WHEN CERTIFIED BY THE
SECRETARY OR BY THE AGENT OF THE CORPORATION HAVING CHARGE OF THE TRANSFER
OF SHARES.
SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. ANY
ACTION REQUIRED OR PERMITTED BY STATUTE, THE ARTICLES OF INCORPORATION OF
THE CORPORATION, OR THESE BY-LAWS, TO BE TAKEN AT ANY ANNUAL OR SPECIAL
MEETING OF SHAREHOLDERS OF THE CORPORATION, MAY BE TAKEN WITHOUT A MEETING,
WITHOUT PRIOR NOTICE, AND WITHOUT A VOTE, IF A WRITTEN CONSENT IN LIEU OF A
MEETING, SETTING FORTH THE ACTIONS SO TAKEN, SHALL BE SIGNED BY ALL THE
SHAREHOLDERS ENTITLED TO VOTE THEREON. ANY SUCH WRITTEN CONSENT MAY BE
GIVEN BY ONE OR ANY NUMBER OF SUBSTANTIALLY CONCURRENT WRITTEN INSTRUMENTS
OF SUBSTANTIALLY SIMILAR TENOR SIGNED BY SUCH SHAREHOLDERS, IN PERSON OR BY
ATTORNEY OR PROXY DULY APPOINTED IN WRITING, AND FILED WITH THE RECORDS OF
THE CORPORATION. ANY SUCH WRITTEN CONSENT SHALL BE EFFECTIVE AS OF THE
EFFECTIVE DATE THEREOF AS SPECIFIED THEREIN.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. THE BUSINESS AND
AFFAIRS OF THE CORPORATION SHALL BE MANAGED AND CONTROLLED BY A BOARD OF
DIRECTORS (WHO NEED NOT BE SHAREHOLDERS) CONSISTING OF NOT LESS THAN THREE
(3) PERSONS AND NOT MORE THAN SEVEN (7), THE EXACT NUMBER OF WHICH MAY BE
FIXED OR CHANGED EITHER BY THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE
SHARES REPRESENTED AND ENTITLED TO VOTE AT ANY MEETING OF THE SHAREHOLDERS
CALLED FOR THE PURPOSE OF ELECTING DIRECTORS, OR BY THE AFFIRMATIVE VOTE OF
THE MAJORITY OF THE DIRECTORS THEN IN OFFICE AT ANY STATED OR SPECIAL
MEETING OF THE BOARD OF DIRECTORS; PROVIDED, HOWEVER, THAT THE BOARD MAY BE
SUBJECT TO CERTAIN LIMITATIONS AS EXPRESSLY PROVIDED FOR UNDER AND PURSUANT
TO KENTUCKY REVISED STATUTES I271B.8-030(2), OR SUCH SIMILAR SUCCESSOR
GOVERNING STATUTE. THE BOARD OF DIRECTORS SHALL BE ELECTED ANNUALLY BY THE
SHAREHOLDERS AT THE ANNUAL MEETING. EACH DIRECTOR SHALL HOLD OFFICE UNTIL
HIS SUCCESSOR SHALL HAVE BEEN ELECTED AND QUALIFIED. ANY DIRECTOR MAY
RESIGN AT ANY TIME. VACANCIES OCCURRING IN THE BOARD OF DIRECTORS SHALL BE
FILLED BY A MAJORITY VOTE OF THE REMAINING MEMBERS OF THE BOARD. A DIRECTOR
THUS ELECTED TO FILL ANY VACANCY SHALL HOLD OFFICE FOR THE UNEXPIRED TERM
OF HIS PREDECESSOR AND UNTIL HIS SUCCESSOR IS ELECTED AND QUALIFIES. ANY
DIRECTOR MAY BE REMOVED AT ANY TIME BY THE AFFIRMATIVE VOTE OF A MAJORITY
OF THE STOCK THEN ISSUED AND ENTITLED TO VOTE AT A SPECIAL MEETING OF
SHAREHOLDERS CALLED FOR THE PURPOSE.
SECTION 2. ANNUAL ORGANIZATION MEETING. IMMEDIATELY AFTER EACH ANNUAL
ELECTION, THE NEWLY-ELECTED DIRECTORS MAY MEET FORTHWITH (EITHER WITHIN OR
WITHOUT THE COMMONWEALTH OF KENTUCKY) FOR THE PURPOSE OF ORGANIZATION, THE
ELECTION OF OFFICERS AND THE TRANSACTION OF OTHER BUSINESS. IF A MAJORITY
OF THE DIRECTORS BE THEN PRESENT NO PRIOR NOTICE OF SUCH MEETING SHALL BE
REQUIRED TO BE GIVEN. THE PLACE AND TIME OF SUCH FIRST MEETING MAY,
HOWEVER, BE FIXED BY WRITTEN CONSENT OF ALL THE DIRECTORS, OR BY THREE (3)
DAYS WRITTEN NOTICE GIVEN BY THE SECRETARY OF THE CORPORATION.
SECTION 3. REGULAR MEETINGS. REGULAR MEETINGS OF THE BOARD OF
DIRECTORS MAY BE HELD AT SUCH TIME AND PLACE (EITHER WITHIN OR WITHOUT THE
COMMONWEALTH OF KENTUCKY), AND UPON SUCH NOTICE, AS THE BOARD OF DIRECTORS
MAY FROM TIME TO TIME DETERMINE.
SECTION 4. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE BOARD OF
DIRECTORS MAY BE CALLED BY THE CHAIRMAN, VICE CHAIRMAN, CHIEF EXECUTIVE
OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, OR MAY BE CALLED BY THE
WRITTEN REQUEST OF TWO (2) MEMBERS OF THE BOARD OF DIRECTORS.
SECTION 5. NOTICE OF MEETINGS. NOTICE OF MEETINGS SHALL BE GIVEN TO
EACH DIRECTOR IN ACCORDANCE WITH ARTICLE X, SECTION 1, OF THESE BY-LAWS.
SECTION 6. QUORUM. A MAJORITY OF THE BOARD OF DIRECTORS SHALL
CONSTITUTE A QUORUM FOR THE TRANSACTION OF BUSINESS, BUT A MAJORITY OF
THOSE PRESENT AT THE TIME AND PLACE OF ANY MEETING, ALTHOUGH LESS THAN A
QUORUM, MAY ADJOURN THE SAME FROM TIME TO TIME, WITHOUT NOTICE, UNTIL A
QUORUM BE HAD. THE ACT OF A MAJORITY OF THE DIRECTORS PRESENT AT ANY SUCH
MEETING AT WHICH A QUORUM IS PRESENT SHALL BE THE ACT OF THE BOARD OF
DIRECTORS.
SECTION 7. COMPENSATION OF DIRECTORS. EACH DIRECTOR OF THE CORPORATION
(OTHER THAN DIRECTORS WHO ARE SALARIED OFFICERS OF THE CORPORATION OR OF
THE CINCINNATI GAS & ELECTRIC COMPANY OR ANY OF ITS AFFILIATES) SHALL BE
ENTITLED TO RECEIVE AS COMPENSATION FOR SERVICES SUCH AMOUNTS AS MAY BE
DETERMINED FROM TIME TO TIME BY THE BOARD OF DIRECTORS IN FORM EITHER IN
FEES FOR ATTENDANCE AT THE MEETING OF THE BOARD OF DIRECTORS, OR BY PAYMENT
AT THE RATE OF A FIXED SUM PER MONTH, OR BOTH. THE SAME PAYMENT MAY ALSO BE
MADE TO ANY ONE OTHER THAN A DIRECTOR OFFICIALLY CALLED TO ATTEND ANY SUCH
MEETING.
SECTION 8. EXECUTIVE COMMITTEE. THE BOARD OF DIRECTORS MAY, BY
RESOLUTION PASSED BY A MAJORITY OF THE WHOLE BOARD, DESIGNATE ANNUALLY
THREE (3) OF THEIR NUMBER TO CONSTITUTE AN EXECUTIVE COMMITTEE, WHO TO THE
EXTENT PROVIDED IN THE RESOLUTION, SHALL EXERCISE IN THE INTERVALS BETWEEN
THE MEETINGS OF THE BOARD OF DIRECTORS THE POWERS OF THE BOARD IN THE
MANAGEMENT OF THE BUSINESS AND AFFAIRS OF THE CORPORATION.
THE EXECUTIVE COMMITTEE MAY ACT BY A MAJORITY OF ITS MEMBERS AT A
MEETING OR BY A WRITING SIGNED BY ALL OF ITS MEMBERS.
ALL ACTION BY THE EXECUTIVE COMMITTEE SHALL BE REPORTED TO THE BOARD
OF DIRECTORS AT ITS MEETING NEXT SUCCEEDING SUCH ACTION.
NON-EMPLOYEE MEMBERS OF SUCH EXECUTIVE COMMITTEE SHALL BE ENTITLED TO
RECEIVE SUCH FEES AND COMPENSATION AS THE BOARD OF DIRECTORS MAY DETERMINE.
<PAGE>
SECTION 9. OTHER COMMITTEES. THE BOARD OF DIRECTORS MAY ALSO APPOINT
SUCH OTHER STANDING OR TEMPORARY COMMITTEES FROM TIME TO TIME AS THEY MAY
SEE FIT, DELEGATING TO SUCH COMMITTEES ALL OR ANY PART OF THEIR OWN POWERS.
THE MEMBERS OF SUCH COMMITTEES SHALL BE ENTITLED TO RECEIVE SUCH FEES AS
THE BOARD MAY DETERMINE.
SECTION 10. ACTIONS OF BOARD. UNLESS OTHERWISE PROVIDED BY THE
ARTICLES OF INCORPORATION OF THE CORPORATION OR THESE BY-LAWS, ANY ACTION
REQUIRED OR PERMITTED TO BE TAKEN AT ANY MEETING OF THE BOARD OF DIRECTORS
OF THE CORPORATION, OR OF ANY COMMITTEE(S) THEREOF, MAY BE TAKEN WITHOUT A
MEETING, IF ALL THE MEMBERS OF THE BOARD OF DIRECTORS, OR OF SUCH
COMMITTEE(S), AS THE CASE MAY BE, CONSENT THERETO IN WRITING, AND SUCH
WRITING(S) IS FILED WITH THE MINUTES OF PROCEEDINGS OF THE BOARD OF
DIRECTORS, OR OF SUCH COMMITTEE(S), OF THE CORPORATION. ANY SUCH WRITTEN
CONSENT TO ACTION OF THE BOARD OF DIRECTORS, OR OF SUCH COMMITTEE(S), SHALL
BE EFFECTUATED BY THE SIGNATURE OF THE MEMBER LASTLY CONSENTING THERETO IN
WRITING, UNLESS THE CONSENT OTHERWISE SPECIFIES A PRIOR OR SUBSEQUENT
EFFECTIVE DATE.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. THE OFFICERS OF THE CORPORATION SHALL CONSIST OF
A CHAIRMAN OF THE BOARD, A CHIEF EXECUTIVE OFFICER, A PRESIDENT, A
SECRETARY, A TREASURER, A COMPTROLLER, AND MAY CONSIST OF A VICE CHAIRMAN,
A CHIEF OPERATING OFFICER, ONE OR MORE VICE PRESIDENTS, ONE OR MORE
ASSISTANT SECRETARIES, ONE OR MORE ASSISTANT TREASURERS, OR ONE OR MORE
ASSISTANT COMPTROLLERS, ALL OF WHOM SHALL BE ELECTED BY THE BOARD OF
DIRECTORS, AND SHALL HOLD OFFICE FOR ONE YEAR AND UNTIL THEIR SUCCESSORS
ARE CHOSEN AND QUALIFIED.
ANY TWO OR MORE OFFICES MAY BE HELD BY THE SAME PERSON, EXCEPT THAT
THE DUTIES OF THE PRESIDENT AND SECRETARY SHALL NOT BE PERFORMED BY THE
SAME PERSON. ALL VACANCIES OCCURRING AMONG ANY OF THE ABOVE OFFICES SHALL
BE FILLED BY THE BOARD OF DIRECTORS. ANY OFFICER MAY BE REMOVED WITH OR
WITHOUT CAUSE BY THE AFFIRMATIVE VOTE OF A MAJORITY OF THE NUMBER OF
DIRECTORS AT ANY MEETING OF THE BOARD OF DIRECTORS.
SECTION 2. SUBORDINATE OFFICERS. THE BOARD OF DIRECTORS MAY APPOINT
SUCH OTHER OFFICERS AND AGENTS WITH SUCH POWERS AND DUTIES AS THEY SHALL
DEEM NECESSARY.
SECTION 3. THE CHAIRMAN OF THE BOARD. THE CHAIRMAN OF THE BOARD SHALL
BE A DIRECTOR AND SHALL PRESIDE AT ALL MEETINGS OF THE BOARD OF DIRECTORS
AND, IN THE ABSENCE OR INABILITY TO ACT OF THE CHIEF EXECUTIVE OFFICER,
MEETINGS OF SHAREHOLDERS AND SHALL, SUBJECT TO THE BOARD'S DIRECTION AND
CONTROL, BE THE BOARD'S REPRESENTATIVE AND MEDIUM OF COMMUNICATION, AND
SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO THE
CHAIRMAN OF THE BOARD BY THE BOARD OF DIRECTORS. THE CHAIRMAN OF THE BOARD
SHALL DIRECT THE LONG-TERM STRATEGIC PLANNING PROCESS OF THE CORPORATION
AND SHALL ALSO LEND HIS OR HER EXPERTISE TO SUCH OTHER OFFICERS AS MAY BE
REQUESTED FROM TIME TO TIME BY SUCH OFFICERS. THE CHAIRMAN SHALL BE A
MEMBER OF THE EXECUTIVE COMMITTEE.
2
<PAGE>
SECTION 4. THE VICE CHAIRMAN. THE VICE CHAIRMAN OF THE BOARD, IF THERE
BE ONE, SHALL BE A DIRECTOR AND SHALL PRESIDE AT MEETINGS OF THE BOARD OF
DIRECTORS IN THE ABSENCE OR INABILITY TO ACT OF THE CHAIRMAN OF THE BOARD
OR MEETINGS OF SHAREHOLDERS IN THE ABSENCE OR INABILITY TO ACT OF THE CHIEF
EXECUTIVE OFFICER AND THE CHAIRMAN OF THE BOARD. THE VICE CHAIRMAN SHALL
PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO HIM OR
HER BY THE BOARD OF DIRECTORS. THE VICE CHAIRMAN SHALL BE A MEMBER OF THE
EXECUTIVE COMMITTEE.
SECTION 5. THE CHIEF EXECUTIVE OFFICER. THE CHIEF EXECUTIVE OFFICER
SHALL BE A DIRECTOR AND SHALL PRESIDE AT ALL MEETINGS OF THE SHAREHOLDERS,
AND, IN THE ABSENCE OR INABILITY TO ACT OF THE CHAIRMAN OF THE BOARD AND
THE VICE CHAIRMAN, AT ALL MEETINGS OF THE BOARD OF DIRECTORS. THE CHIEF
EXECUTIVE OFFICER SHALL FROM TIME TO TIME REPORT TO THE BOARD OF DIRECTORS
ALL MATTERS WITHIN HIS OR HER KNOWLEDGE WHICH THE INTERESTS OF THE
CORPORATION MAY REQUIRE BE BROUGHT TO THEIR NOTICE. THE CHIEF EXECUTIVE
OFFICER SHALL BE THE CHAIRMAN OF THE EXECUTIVE COMMITTEE AND EX OFFICIO A
MEMBER OF ALL STANDING COMMITTEES.
SECTION 6. THE CHIEF OPERATING OFFICER. THE CHIEF OPERATING OFFICER OF
THE CORPORATION, IF THERE BE ONE, SHALL HAVE GENERAL AND ACTIVE MANAGEMENT
AND DIRECTION OF THE AFFAIRS OF THE CORPORATION, SHALL HAVE SUPERVISION OF
ALL DEPARTMENTS AND OF ALL OFFICERS OF THE CORPORATION, SHALL SEE THAT THE
ORDERS AND RESOLUTIONS OF THE BOARD OF DIRECTORS AND OF THE EXECUTIVE
COMMITTEE ARE CARRIED INTO EFFECT, AND SHALL HAVE THE GENERAL POWERS AND
DUTIES OF SUPERVISION AND MANAGEMENT USUALLY VESTED IN THE OFFICE OF A
CHIEF OPERATING OFFICER OF A CORPORATION. UNLESS OTHERWISE PROVIDED, ALL
CORPORATE OFFICERS AND FUNCTIONS SHALL REPORT DIRECTLY TO THE CHIEF
OPERATING OFFICER, IF THERE BE ONE, OR, IF NOT, TO THE CHIEF EXECUTIVE
OFFICER.
SECTION 7. THE PRESIDENT. THE PRESIDENT SHALL HAVE SUCH DUTIES AS MAY
BE DELEGATED BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, OR CHIEF
OPERATING OFFICER.
SECTION 8. THE VICE PRESIDENTS. THE VICE PRESIDENTS SHALL PERFORM SUCH
DUTIES AS THE BOARD OF DIRECTORS SHALL FROM TIME TO TIME REQUIRE. IN THE
ABSENCE OR INCAPACITY OF THE PRESIDENT, THE VICE PRESIDENT DESIGNATED BY
THE BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE, CHIEF EXECUTIVE OFFICER,
CHIEF OPERATING OFFICER, OR PRESIDENT SHALL EXERCISE THE POWERS AND DUTIES
OF THE PRESIDENT.
SECTION 9(A). THE SECRETARY. THE SECRETARY SHALL ATTEND ALL MEETINGS
OF THE BOARD OF DIRECTORS, OF THE EXECUTIVE COMMITTEE AND OF THE
SHAREHOLDERS AND ACT AS CLERK THEREOF AND RECORD ALL VOTES AND THE MINUTES
OF ALL PROCEEDINGS IN A BOOK TO BE KEPT FOR THAT PURPOSE, AND SHALL PERFORM
LIKE DUTIES FOR THE STANDING COMMITTEES WHEN REQUIRED.
THE SECRETARY SHALL SEE THAT PROPER NOTICE IS GIVEN OF ALL MEETINGS OF
THE SHAREHOLDERS OF THE CORPORATION AND OF THE BOARD OF DIRECTORS AND SHALL
PERFORM SUCH OTHER DUTIES AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE
BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR
PRESIDENT.
(B) ASSISTANT SECRETARIES. AT THE REQUEST OF THE SECRETARY, OR IN HIS
OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT SECRETARY OR, IF THERE BE
MORE THAN ONE, THE ASSISTANT SECRETARY DESIGNATED BY THE SECRETARY, SHALL
PERFORM THE DUTIES OF THE SECRETARY AND WHEN SO ACTING SHALL HAVE ALL THE
POWERS OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE SECRETARY. THE
ASSISTANT SECRETARIES SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO
TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE
OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR SECRETARY.
3
<PAGE>
SECTION 10(A). THE TREASURER. THE TREASURER SHALL BE THE FINANCIAL
OFFICER OF THE CORPORATION, SHALL KEEP FULL AND ACCURATE ACCOUNTS OF ALL
COLLECTIONS, RECEIPTS AND DISBURSEMENTS IN BOOKS BELONGING TO THE
CORPORATION, SHALL DEPOSIT ALL MONEYS AND OTHER VALUABLES IN THE NAME AND
TO THE CREDIT OF THE CORPORATION, IN SUCH DEPOSITORIES AS MAY BE DIRECTED
BY THE BOARD OF DIRECTORS, SHALL DISBURSE THE FUNDS OF THE CORPORATION AS
MAY BE ORDERED BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF
OPERATING OFFICER, OR PRESIDENT, TAKING PROPER VOUCHERS THEREFOR, AND SHALL
RENDER TO THE CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR
PRESIDENT, AND DIRECTORS AT ALL REGULAR MEETINGS OF THE BOARD, OR WHENEVER
THEY MAY REQUIRE IT, AND TO THE ANNUAL MEETING OF THE SHAREHOLDERS, AN
ACCOUNT OF ALL HIS OR HER TRANSACTIONS AS TREASURER AND OF THE FINANCIAL
CONDITION OF THE CORPORATION.
THE TREASURER SHALL ALSO PERFORM SUCH OTHER DUTIES AS THE BOARD OF
DIRECTORS MAY FROM TIME TO TIME REQUIRE.
IF REQUIRED BY THE BOARD OF DIRECTORS, THE TREASURER SHALL GIVE THE
CORPORATION A BOND IN A FORM AND IN A SUM WITH SURETY SATISFACTORY TO THE
BOARD OF DIRECTORS FOR THE FAITHFUL PERFORMANCE OF THE DUTIES OF HIS OR HER
OFFICE AND THE RESTORATION TO THE CORPORATION IN THE CASE OF HIS OR HER
DEATH, RESIGNATION OR REMOVAL FROM OFFICE OF ALL BOOKS, PAPERS, VOUCHERS,
MONEY AND OTHER PROPERTY OF WHATEVER KIND IN HIS OR HER POSSESSION
BELONGING TO THE CORPORATION.
(B) ASSISTANT TREASURERS. AT THE REQUEST OF THE TREASURER, OR IN HIS
OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT TREASURER OR, IF THERE BE
MORE THAN ONE, THE ASSISTANT TREASURER DESIGNATED BY THE TREASURER, SHALL
PERFORM THE DUTIES OF THE TREASURER AND WHEN SO ACTING SHALL HAVE ALL THE
POWERS OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE TREASURER. THE
ASSISTANT TREASURERS SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO
TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE
OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR TREASURER.
SECTION 11(A). THE COMPTROLLER. THE COMPTROLLER SHALL HAVE CONTROL
OVER ALL ACCOUNTS AND RECORDS OF THE CORPORATION PERTAINING TO MONEYS,
PROPERTIES, MATERIALS AND SUPPLIES. HE OR SHE SHALL HAVE EXECUTIVE
DIRECTION OVER THE BOOKKEEPING AND ACCOUNTING DEPARTMENTS AND SHALL HAVE
GENERAL SUPERVISION OVER THE RECORDS IN ALL OTHER DEPARTMENTS PERTAINING TO
MONEYS, PROPERTIES, MATERIALS AND SUPPLIES. HE OR SHE SHALL HAVE SUCH OTHER
POWERS AND DUTIES AS ARE INCIDENT TO THE OFFICE OF COMPTROLLER OF A
CORPORATION AND SHALL BE SUBJECT AT ALL TIMES TO THE DIRECTION AND CONTROL
OF THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING
OFFICER, PRESIDENT, AND A VICE PRESIDENT.
(B) ASSISTANT COMPTROLLERS. AT THE REQUEST OF THE COMPTROLLER, OR IN
HIS OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT COMPTROLLER OR, IF
THERE BE MORE THAN ONE, THE ASSISTANT COMPTROLLER DESIGNATED BY THE
COMPTROLLER, SHALL PERFORM THE DUTIES OF THE COMPTROLLER AND WHEN SO ACTING
SHALL HAVE ALL THE POWER OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE
COMPTROLLER. THE ASSISTANT COMPTROLLERS SHALL PERFORM SUCH OTHER DUTIES AS
MAY FROM TIME TO TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF
EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR COMPTROLLER.
4
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS
SECTION 1. DEFINITIONS. AS USED IN THIS ARTICLE:
A. "CORPORATION" INCLUDES ANY DOMESTIC OR FOREIGN PREDECESSOR ENTITY
OF THE CORPORATION IN A MERGER OR OTHER TRANSACTION IN WHICH THE
PREDECESSOR'S EXISTENCE CEASED UPON CONSUMMATION OF THE TRANSACTION.
B. "DIRECTOR" MEANS AN INDIVIDUAL WHO IS OR WAS A DIRECTOR OF THE
CORPORATION OR AN INDIVIDUAL WHO, WHILE A DIRECTOR OF THE CORPORATION, IS
OR WAS SERVING AT THE CORPORATION'S REQUEST AS A DIRECTOR, OFFICER,
PARTNER, TRUSTEE, EMPLOYEE, OR AGENT OF ANOTHER FOREIGN OR DOMESTIC
CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN, OR
OTHER ENTERPRISE. A DIRECTOR SHALL BE CONSIDERED TO BE SERVING AN EMPLOYEE
BENEFIT PLAN AT THE CORPORATION'S REQUEST IF HIS OR HER DUTIES TO THE
CORPORATION ALSO IMPOSE DUTIES ON, OR OTHERWISE INVOLVE SERVICES BY, HIM OR
HER TO THE PLAN OR TO PARTICIPANTS IN OR BENEFICIARIES OF THE PLAN.
"DIRECTOR" INCLUDES, UNLESS THE CONTEXT REQUIRES OTHERWISE, THE ESTATE OR
PERSONAL REPRESENTATIVE OF A DIRECTOR.
C. "EXPENSES" INCLUDE COUNSEL FEES.
D. "LIABILITY" MEANS THE OBLIGATION TO PAY A JUDGMENT, SETTLEMENT,
PENALTY, FINE (INCLUDING AN EXCISE TAX ASSESSED WITH RESPECT TO AN EMPLOYEE
BENEFIT PLAN), OR REASONABLE EXPENSES INCURRED WITH RESPECT TO A
PROCEEDING.
E. "OFFICIAL CAPACITY" MEANS:
(1) WHEN USED WITH RESPECT TO A DIRECTOR, THE OFFICE OF DIRECTOR
IN THE CORPORATION; AND
(2) WHEN USED WITH RESPECT TO AN INDIVIDUAL OTHER THAN A
DIRECTOR, AS CONTEMPLATED IN SECTION 6, THE OFFICE IN THE CORPORATION
HELD BY THE OFFICER OR THE EMPLOYMENT OR AGENCY RELATIONSHIP
UNDERTAKEN BY THE EMPLOYEE OR AGENT ON BEHALF OF THE CORPORATION.
"OFFICIAL CAPACITY" SHALL NOT INCLUDE SERVICE FOR ANY OTHER FOREIGN OR
DOMESTIC CORPORATION OR ANY PARTNERSHIP, JOINT VENTURE, TRUST,
EMPLOYEE BENEFIT PLAN, OR OTHER ENTERPRISE.
F. "PARTY" INCLUDES AN INDIVIDUAL WHO WAS, IS, OR IS THREATENED TO BE
MADE A NAMED DEFENDANT OR RESPONDENT IN A PROCEEDING.
G. "PROCEEDING" MEANS ANY THREATENED, PENDING, OR COMPLETED ACTION,
SUIT, OR PROCEEDING, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE, OR
INVESTIGATIVE AND WHETHER FORMAL OR INFORMAL.
SECTION 2. INDEMNIFICATION.
A. EXCEPT AS PROVIDED IN SUBSECTION (D) OF THIS SECTION, THE
CORPORATION SHALL INDEMNIFY AN INDIVIDUAL MADE A PARTY TO A PROCEEDING
BECAUSE HE OR SHE IS OR WAS A DIRECTOR AGAINST LIABILITY INCURRED IN THE
PROCEEDING IF:
(1) HE OR SHE CONDUCTED HIMSELF OR HERSELF IN GOOD FAITH; AND
(2) HE OR SHE REASONABLY BELIEVED:
(a) IN THE CASE OF CONDUCT IN HIS OR HER OFFICIAL CAPACITY
WITH THE CORPORATION, THAT HIS OR HER CONDUCT WAS IN ITS BEST
INTEREST; AND
(b) IN ALL OTHER CASES, THAT HIS OR HER CONDUCT WAS AT LEAST
NOT OPPOSED TO ITS BEST INTERESTS; AND
(3) IN THE CASE OF ANY CRIMINAL PROCEEDING, HE OR SHE HAD NO
REASONABLE CAUSE TO BELIEVE HIS OR HER CONDUCT WAS UNLAWFUL.
B. A DIRECTOR'S CONDUCT WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN FOR A
PURPOSE HE OR SHE REASONABLY BELIEVED TO BE IN THE INTERESTS OF THE
PARTICIPANTS IN AND BENEFICIARIES OF THE PLAN SHALL BE CONDUCT THAT
SATISFIES THE REQUIREMENT OF SUBSECTION A(2)(B) OF THIS SECTION.
C. THE TERMINATION OF A PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT,
CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT SHALL NOT
BE, OF ITSELF, DETERMINATIVE THAT THE DIRECTOR DID NOT MEET THE STANDARD OF
CONDUCT DESCRIBED IN THIS SECTION.
D. THE CORPORATION MAY NOT INDEMNIFY A DIRECTOR UNDER THIS SECTION:
(1) IN CONNECTION WITH A PROCEEDING BY OR IN THE RIGHT OF THE
CORPORATION IN WHICH THE DIRECTOR WAS ADJUDGED LIABLE TO THE
CORPORATION; OR
(2) IN CONNECTION WITH ANY OTHER PROCEEDING CHARGING IMPROPER
PERSONAL BENEFIT TO HIM OR HER, WHETHER OR NOT INVOLVING ACTION IN HIS
OR HER OFFICIAL CAPACITY, IN WHICH HE OR SHE WAS ADJUDGED LIABLE ON
THE BASIS THAT PERSONAL BENEFIT WAS IMPROPERLY RECEIVED BY HIM OR HER.
E. INDEMNIFICATION PERMITTED UNDER THIS SECTION IN CONNECTION WITH A
PROCEEDING BY OR IN THE RIGHT OF THE CORPORATION SHALL BE LIMITED TO
REASONABLE EXPENSES INCURRED IN CONNECTION WITH THE PROCEEDING.
SECTION 3. MANDATORY INDEMNIFICATION. UNLESS LIMITED BY THE ARTICLES
OF INCORPORATION, THE CORPORATION SHALL INDEMNIFY A DIRECTOR WHO WAS WHOLLY
SUCCESSFUL, ON THE MERITS OR OTHERWISE, IN THE DEFENSE OF ANY PROCEEDING TO
WHICH HE OR SHE WAS A PARTY BECAUSE HE OR SHE IS OR WAS A DIRECTOR OF THE
CORPORATION AGAINST REASONABLE EXPENSES INCURRED BY HIM OR HER IN
CONNECTION WITH THE PROCEEDING.
SECTION 4. ADVANCE FOR EXPENSES.
A. THE CORPORATION MAY PAY FOR OR REIMBURSE THE REASONABLE EXPENSES
INCURRED BY A DIRECTOR WHO IS A PARTY TO A PROCEEDING IN ADVANCE OF FINAL
DISPOSITION OF THE PROCEEDING IF:
(1) THE DIRECTOR FURNISHES THE CORPORATION A WRITTEN AFFIRMATION
OF HIS OR HER GOOD FAITH BELIEF THAT HE OR SHE HAS MET THE STANDARD OF
CONDUCT DESCRIBED IN SECTION 2;
(2) THE DIRECTOR FURNISHES THE CORPORATION A WRITTEN UNDERTAKING,
EXECUTED PERSONALLY OR ON HIS OR HER BEHALF, TO REPAY THE ADVANCE IF
IT IS ULTIMATELY DETERMINED THAT HE OR SHE DID NOT MEET THE STANDARD
OF CONDUCT; AND
(3) A DETERMINATION IS MADE THAT THE FACTS THEN KNOWN TO THOSE
MAKING THE DETERMINATION WOULD NOT PRECLUDE INDEMNIFICATION UNDER THIS
ARTICLE.
B. THE UNDERTAKING REQUIRED BY SUBSECTION A(2) OF THIS SECTION
SHALL BE AN UNLIMITED GENERAL OBLIGATION OF THE DIRECTOR BUT SHALL NOT
BE REQUIRED TO BE SECURED AND MAY BE ACCEPTED WITHOUT REFERENCE TO
FINANCIAL ABILITY TO MAKE REPAYMENT.
C. DETERMINATIONS AND AUTHORIZATIONS OF PAYMENTS UNDER THIS
SECTION SHALL BE MADE IN THE MANNER SPECIFIED IN SECTION 5.
SECTION 5. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
A. THE CORPORATION SHALL NOT INDEMNIFY A DIRECTOR UNDER SECTION 2
OF THIS ARTICLE UNLESS AUTHORIZED IN THE SPECIFIC CASE AFTER A
DETERMINATION HAS BEEN MADE THAT INDEMNIFICATION OF THE DIRECTOR IS
PERMISSIBLE IN THE CIRCUMSTANCES BECAUSE HE OR SHE HAS MET THE
STANDARD OF CONDUCT SET FORTH IN SECTION 2.
B. THE DETERMINATION SHALL BE MADE:
(1) BY THE BOARD OF DIRECTORS BY MAJORITY VOTE OF A QUORUM
CONSISTING OF DIRECTORS NOT AT THE TIME PARTIES TO THE
PROCEEDING;
(2) IF A QUORUM CANNOT BE OBTAINED UNDER SUBSECTION B(1) OF
THIS SECTION, BY MAJORITY VOTE OF A COMMITTEE DULY DESIGNATED BY
THE BOARD OF DIRECTORS (IN WHICH DESIGNATION DIRECTORS WHO ARE
PARTIES MAY PARTICIPATE), CONSISTING SOLELY OF TWO OR MORE
DIRECTORS NOT AT THE TIME PARTIES TO THE PROCEEDING;
(3) BY SPECIAL LEGAL COUNSEL:
(a) SELECTED BY THE BOARD OF DIRECTORS OR ITS COMMITTEE
IN THE MANNER PRESCRIBED IN SUBSECTION B(1) AND (2) OF THIS
SECTION; OR
(b) IF A QUORUM OF THE BOARD OF DIRECTORS CANNOT BE
OBTAINED UNDER SUBSECTION B(1) OF THIS SECTION AND A
COMMITTEE CANNOT BE DESIGNATED UNDER SUBSECTION B(2) OF THIS
SECTION, SELECTED BY MAJORITY VOTE OF THE FULL BOARD OF
DIRECTORS (IN WHICH SELECTION DIRECTORS WHO ARE PARTIES MAY
PARTICIPATE); OR
(4) BY THE SHAREHOLDERS, BUT SHARES OWNED BY OR VOTED UNDER
THE CONTROL OF DIRECTORS WHO ARE AT THE TIME PARTIES TO THE
PROCEEDING SHALL NOT BE VOTED ON THE DETERMINATION.
C. AUTHORIZATION OF INDEMNIFICATION AND EVALUATION AS TO
REASONABLENESS OF EXPENSES SHALL BE MADE IN THE SAME MANNER AS THE
DETERMINATION THAT INDEMNIFICATION IS PERMISSIBLE, EXCEPT THAT IF THE
DETERMINATION IS MADE BY SPECIAL LEGAL COUNSEL, AUTHORIZATION OF
INDEMNIFICATION AND EVALUATION AS TO REASONABLENESS OF EXPENSES SHALL
BE MADE BY THOSE ENTITLED UNDER SUBSECTION B(3) OF THIS SECTION TO
SELECT COUNSEL.
5
<PAGE>
SECTION 6. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS. UNLESS
THE CORPORATION'S ARTICLES OF INCORPORATION PROVIDE OTHERWISE:
A. AN OFFICER OF THE CORPORATION WHO IS NOT A DIRECTOR SHALL BE
ENTITLED TO MANDATORY INDEMNIFICATION UNDER SECTION 3, AND IS ENTITLED TO
APPLY FOR COURT-ORDERED INDEMNIFICATION UNDER THE KENTUCKY BUSINESS
CORPORATION ACT, IN EACH CASE TO THE SAME EXTENT AS A DIRECTOR;
B. THE CORPORATION MAY INDEMNIFY AND ADVANCE EXPENSES UNDER THIS
ARTICLE TO AN OFFICER, EMPLOYEE, OR AGENT OF THE CORPORATION WHO IS NOT A
DIRECTOR TO THE SAME EXTENT AS TO A DIRECTOR; AND
C. THE CORPORATION MAY ALSO INDEMNIFY AND ADVANCE EXPENSES TO AN
OFFICER, EMPLOYEE, OR AGENT WHO IS NOT A DIRECTOR TO THE EXTENT, CONSISTENT
WITH PUBLIC POLICY, THAT MAY BE PROVIDED BY THE ARTICLES OF INCORPORATION,
BY-LAWS, GENERAL OR SPECIFIC ACTION OF THE BOARD OF DIRECTORS, OR CONTRACT.
SECTION 7. INSURANCE. THE CORPORATION MAY PURCHASE AND MAINTAIN
INSURANCE ON BEHALF OF AN INDIVIDUAL WHO IS OR WAS A DIRECTOR, OFFICER,
EMPLOYEE, OR AGENT OF THE CORPORATION, OR WHO, WHILE A DIRECTOR, OFFICER,
EMPLOYEE, OR AGENT OF THE CORPORATION, IS OR WAS SERVING AT THE REQUEST OF
THE CORPORATION AS A DIRECTOR, OFFICER, PARTNER, TRUSTEE, EMPLOYEE, OR
AGENT OF ANOTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST, EMPLOYEE BENEFIT PLAN, OR OTHER ENTERPRISE, AGAINST
LIABILITY ASSERTED AGAINST OR INCURRED BY HIM OR HER IN THAT CAPACITY OR
ARISING FROM HIS OR HER STATUS AS A DIRECTOR, OFFICER, EMPLOYEE, OR AGENT,
WHETHER OR NOT THE CORPORATION WOULD HAVE POWER TO INDEMNIFY HIM OR HER
AGAINST THE SAME LIABILITY UNDER SECTION 2 OR SECTION 3.
SECTION 8. APPLICATION OF THIS ARTICLE.
A. THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY, OR
GRANTED PURSUANT TO, THIS ARTICLE SHALL NOT BE DEEMED EXCLUSIVE OF ANY
OTHER RIGHTS TO WHICH THOSE SEEKING INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES MAY BE ENTITLED UNDER THE BY-LAWS, ANY AGREEMENT, VOTE OF
SHAREHOLDERS OR DISINTERESTED DIRECTORS, OR OTHERWISE, BOTH AS TO ACTION IN
HIS OR HER OFFICIAL CAPACITY AND AS TO ACTION IN ANOTHER CAPACITY WHILE
HOLDING SUCH OFFICE.
B. THIS ARTICLE SHALL NOT LIMIT THE CORPORATION'S POWER TO PAY OR
REIMBURSE EXPENSES INCURRED BY A DIRECTOR IN CONNECTION WITH HIS OR HER
APPEARANCE AS A WITNESS AT A PROCEEDING AT A TIME WHEN HE OR SHE HAS NOT
BEEN MADE A NAMED DEFENDANT OR RESPONDENT TO THE PROCEEDING.
ARTICLE VI
CAPITAL STOCK
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. THE CERTIFICATES FOR
SHARES OF THE CAPITAL STOCK OF THE CORPORATION SHALL BE OF SUCH FORM AND
CONTENT, NOT INCONSISTENT WITH THE LAW AND THE ARTICLES OF INCORPORATION,
AS SHALL BE APPROVED BY THE BOARD OF DIRECTORS. THE CERTIFICATES SHALL BE
SIGNED BY (1) EITHER THE CHAIRMAN, CHIEF EXECUTIVE OFFICER, PRESIDENT, OR A
VICE PRESIDENT, AND (2) ANY ONE OF THE FOLLOWING OFFICERS: SECRETARY OR
ASSISTANT SECRETARY, TREASURER OR ASSISTANT TREASURER. ALL CERTIFICATES
SHALL BE CONSECUTIVELY NUMBERED IN EACH CLASS OF SHARES. THE NAME AND
ADDRESS OF THE PERSON OWNING THE SHARES REPRESENTED THEREBY, WITH THE
NUMBER OF SHARES AND THE DATE OF ISSUE, SHALL BE ENTERED ON THE
CORPORATION'S BOOKS.
SECTION 2. TRANSFER OF SHARES. TRANSFER OF SHARES SHALL BE MADE UPON
THE BOOKS OF THE CORPORATION OR RESPECTIVE TRANSFER AGENTS DESIGNATED TO
TRANSFER EACH CLASS OF STOCK, AND BEFORE A NEW CERTIFICATE IS ISSUED THE
OLD CERTIFICATES SHALL BE SURRENDERED FOR CANCELLATION.
SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. THE BOARD OF
DIRECTORS MAY APPOINT ONE OR MORE TRANSFER AGENTS OR ONE OR MORE REGISTRARS
OR BOTH, AND MAY REQUIRE ALL STOCK CERTIFICATES TO BEAR THE SIGNATURE OF
EITHER OR BOTH. WHEN ANY SUCH CERTIFICATE IS SIGNED, BY A TRANSFER AGENT OR
REGISTRAR, THE SIGNATURES OF THE CORPORATE OFFICERS AND THE CORPORATE SEAL,
IF ANY, UPON SUCH CERTIFICATE MAY BE FACSIMILES, ENGRAVED OR PRINTED.
IN CASE ANY OFFICER DESIGNATED FOR THE PURPOSE, WHO HAS SIGNED OR
WHOSE FACSIMILE SIGNATURE HAS BEEN USED ON ANY SUCH CERTIFICATE, SHALL,
FROM ANY CAUSE, CEASE TO BE SUCH OFFICER BEFORE THE CERTIFICATE HAS BEEN
DELIVERED BY THE CORPORATION, THE CERTIFICATE MAY NEVERTHELESS BE ADOPTED
BY THE CORPORATION AND BE ISSUED AND DELIVERED AS THOUGH THE PERSON HAD NOT
CEASED TO BE SUCH OFFICER.
SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS.
THE BOARD OF DIRECTORS MAY FIX A TIME NOT EXCEEDING FORTY (40) DAYS
PRECEDING THE DATE OF ANY MEETING OF SHAREHOLDERS OR ANY DIVIDEND PAYMENT
DATE OR ANY DATE FOR THE ALLOTMENT OF RIGHTS AS A RECORD DATE FOR THE
DETERMINATION OF THE SHAREHOLDERS ENTITLED TO NOTICE OF SUCH MEETING OR TO
VOTE THEREAT OR TO RECEIVE SUCH DIVIDENDS OR RIGHTS AS THE CASE MAY BE; OR
THE BOARD OF DIRECTORS MAY CLOSE THE BOOKS OF THE CORPORATION AGAINST
TRANSFER OF SHARES DURING THE WHOLE OR ANY PART OF SUCH PERIOD.
SECTION 5. LOST STOCK CERTIFICATES. IN THE CASE OF A LOST STOCK
CERTIFICATE, A NEW STOCK CERTIFICATE MAY BE ISSUED IN ITS PLACE UPON PROOF
OF SUCH LOSS, DESTRUCTION OR MUTILATION AND UPON THE GIVING OF A
SATISFACTORY BOND OF INDEMNITY TO THE CORPORATION AND/OR TO THE TRANSFER
AGENT AND REGISTRAR OF SUCH STOCK, IF ANY, IN SUCH SUM AND UNDER SUCH TERMS
AS THE BOARD OF DIRECTORS MAY PROVIDE.
ARTICLE VII
DIVIDENDS
SECTION 1. DIVIDENDS. DIVIDENDS MAY BE DECLARED BY THE BOARD OF
DIRECTORS (OR THE EXECUTIVE COMMITTEE, IF THERE BE ONE AND THE AUTHORITY TO
DECLARE DIVIDENDS IS DELEGATED TO THE EXECUTIVE COMMITTEE BY THE BOARD OF
DIRECTORS) AND PAID IN CASH, SHARES, OR OTHER PROPERTY OUT OF THE ANNUAL
NET INCOME TO THE CORPORATION OR OUT OF ITS NET ASSETS IN EXCESS OF ITS
CAPITAL, COMPUTED IN ACCORDANCE WITH THE STATE STATUTE AND SUBJECT TO THE
CONDITIONS AND LIMITATIONS IMPOSED BY THE ARTICLES OF INCORPORATION.
NO DIVIDENDS SHALL BE PAID TO THE HOLDERS OF ANY CLASS OF SHARES IN
VIOLATION OF THE RIGHTS OF THE HOLDERS OF ANY OTHER CLASS OF SHARES.
BEFORE PAYMENT OF ANY DIVIDENDS OR MAKING DISTRIBUTION OF ANY PROFITS,
THERE MAY BE SET APART OUT OF THE EXCESS OF ASSETS AVAILABLE FOR DIVIDENDS
SUCH SUM OR SUMS AS THE BOARD OF DIRECTORS (OR EXECUTIVE COMMITTEE, IF
THERE BE ONE AND THE AUTHORITY TO DECLARE DIVIDENDS OR MAKE DISTRIBUTIONS
IS DELEGATED TO THE EXECUTIVE COMMITTEE) FROM TIME TO TIME IN ITS ABSOLUTE
DISCRETION THINKS PROPER AS A RESERVE FUND FOR ANY PURPOSE.
6
<PAGE>
ARTICLE VIII
FISCAL YEAR
SECTION 1. FISCAL YEAR. THE FISCAL YEAR OF THE CORPORATION SHALL BEGIN
ON THE FIRST DAY OF JANUARY AND TERMINATE ON THE THIRTY-FIRST DAY OF
DECEMBER IN EACH YEAR.
ARTICLE IX
CONTRACTS, CHECKS, NOTES, ETC.
SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. ALL CONTRACTS AND AGREEMENTS
AUTHORIZED BY THE BOARD OF DIRECTORS AND ALL BONDS AND NOTES SHALL, UNLESS
OTHERWISE DIRECTED BY THE BOARD OF DIRECTORS OR UNLESS OTHERWISE REQUIRED
BY LAW, BE SIGNED BY (1) EITHER THE CHAIRMAN, VICE CHAIRMAN, CHIEF
EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR A VICE PRESIDENT,
AND (2) ANY ONE OF THE FOLLOWING OFFICERS: SECRETARY OR ASSISTANT
SECRETARY, TREASURER OR ASSISTANT TREASURER. THE BOARD OF DIRECTORS MAY BY
RESOLUTION ADOPTED AT ANY MEETING DESIGNATE OFFICERS OF THE CORPORATION WHO
MAY IN THE NAME OF THE CORPORATION EXECUTE CHECKS, DRAFTS AND ORDERS FOR
THE PAYMENT OF MONEY IN ITS BEHALF AND, IN THE DISCRETION OF THE BOARD OF
DIRECTORS, SUCH OFFICERS MAY BE SO AUTHORIZED TO SIGN SUCH CHECKS SINGLY
WITHOUT NECESSITY FOR COUNTER-SIGNATURE.
ARTICLE X
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE AND WAIVER OF NOTICE. ANY NOTICE REQUIRED TO BE
GIVEN BY THESE BY-LAWS TO A DIRECTOR OR OFFICER MAY BE GIVEN IN WRITING,
PERSONALLY SERVED OR THROUGH THE UNITED STATES MAIL, OR BY TELEPHONE,
TELECOPY, TELEGRAM, CABLEGRAM OR RADIOGRAM, AND SUCH NOTICE SHALL BE DEEMED
TO BE GIVEN AT THE TIME WHEN THE SAME SHALL BE THUS TRANSMITTED. ANY NOTICE
REQUIRED TO BE GIVEN BY THESE BY-LAWS MAY BE WAIVED BY THE PERSON ENTITLED
TO SUCH NOTICE.
ARTICLE XI
AMENDMENT
SECTION 1. AMENDMENT. THESE BY-LAWS MAY BE AMENDED OR REPEALED AT ANY
MEETING OF THE SHAREHOLDERS OF THE CORPORATION BY THE AFFIRMATIVE VOTE OF
THE HOLDERS OF RECORD OF SHARES ENTITLING THEM TO EXERCISE A MAJORITY OF
THE VOTING POWER ON SUCH PROPOSAL, OR, WITHOUT A MEETING, BY THE WRITTEN
CONSENT OF THE HOLDERS OF RECORD OF SHARES ENTITLING THEM TO EXERCISE A
TWO-THIRDS MAJORITY OF THE VOTING POWER ON SUCH PROPOSAL.
