AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 17, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_______________
FORM S-6
_______________
FOR REGISTRATION UNDER THE SECURITIES ACT
OF 1933 OF SECURITIES OF UNIT INVESTMENT
TRUSTS REGISTERED ON FORM N-8B-2
_______________
A. EXACT NAME OF TRUST:
MUNICIPAL INVESTMENT TRUST FUND
MONTHLY PAYMENT SERIES-573
DEFINED ASSET FUNDS
B. NAMES OF DEPOSITORS:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
DEAN WITTER REYNOLDS INC.
C. COMPLETE ADDRESSES OF DEPOSITORS' PRINCIPAL EXECUTIVE OFFICES:
MERRILL LYNCH, PIERCE, FENNER & SMITH SMITH BARNEY INC.
INCORPORATED 388 GREENWICH STREET
DEFINED ASSET FUNDS 23RD FLOOR
P.O. BOX 9051 NEW YORK, N.Y. 10013
PRINCETON, N.J. 08543-9051
PAINEWEBBER INCORPORATED PRUDENTIAL SECURITIES DEAN WITTER REYNOLDS
1285 AVE. OF THE AMERICAS INCORPORATED INC.
NEW YORK, N.Y. 10019 ONE SEAPORT PLAZA TWO WORLD TRADE CENTER--
199 WATER STREET 59TH FLOOR
NEW YORK, N.Y. 10292 NEW YORK, N.Y. 10048
D. NAMES AND COMPLETE ADDRESSES OF AGENTS FOR SERVICE:
TERESA KONCICK, ESQ. LAURIE HESSLEIN DOUGLAS LOWE, ESQ.
P.O BOX 9051 388 GREENWICH STREET 130 LIBERTY STREET--
PRINCETON, N.J. 08543-9051 NEW YORK, N.Y. 10013 29TH FLOOR
NEW YORK, N. Y. 10006
COPIES TO:
ROBERT E. HOLLEY LEE B. SPENCER, JR. PIERRE DE SAINT PHALLE, ESQ.
1285 AVENUE OF THE AMERICAS ONE SEAPORT PLAZA 450 LEXINGTON AVENUE
NEW YORK, N.Y. 10019 199 WATER STREET NEW YORK, N.Y. 10017
NEW YORK, N.Y. 10292
E. TITLE AND AMOUNT OF SECURITIES BEING REGISTERED:
An indefinite number of Units of Beneficial Interest pursuant to Rule 24f-2
promulgated under the Investment Company Act of 1940, as amended.
F. PROPOSED MAXIMUM OFFERING PRICE TO THE PUBLIC OF THE SECURITIES BEING
REGISTERED:
Indefinite
G. AMOUNT OF FILING FEE:
$500 (as required by Rule 24f-2)
H. APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the acquisition and deposit of the underlying
obligations.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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PART II
ADDITIONAL INFORMATION NOT INCLUDED IN THE PROSPECTUS
Item A. Bonding Arrangements of the Depositors.
Merrill Lynch, Pierce, Fenner & Smith Incorporated is covered
under a Comprehensive Crime program in the amount of $100,000,000. The lead
insurer is National Union. Investor Protection Insurance Company provides the
excess coverage.
The employees of Smith Barney Inc. are covered under a
Stockbrokers Blanket Bond, Standard Form 14, in the amount of $150,000,000
excess of a $5,000,000 deductible. In addition, there is a Deductible Infill
policy in the amount of $3,000,000 excess of a $2,000,000 deductible.
PaineWebber Incorporated maintains a Form #14, Brokers' Blanket
Bond in the amount of $100,000,000 for any one loss.
Prudential Securities Incorporated is covered under a Brokers'
Blanket Bond, Financial Institution Standard Form No. 14 in the amount of
$150,000,000, the lead issuer of which is Lloyds of London.
Dean Witter Reynolds Inc. is covered under a Stockbrokers'
Blanket Bond in the amount of $100,000,000 underwritten by Chubb Insurance
Group and others.
Item B. Date of Organization of the Depositor.
The year in which the first organized predecessor of each Depositor
was founded is as follows:
Merrill Lynch, Pierce, Fenner & Smith Incorporated.....................1820
Smith Barney Inc.......................................................1960
PaineWebber Incorporated...............................................1969
Prudential Securities Incorporated.....................................1879
Dean Witter Reynolds Inc...............................................1931
Item C. Information as to Officers and Directors of the Depositor.
Information as to Officers and Directors of the depositors filed
pursuant to Schedules A and D of Form BD under Rules 15b1-1 and 15b3-1 of the
Securities Exchange Act of 1934:
Merrill Lynch, Pierce, Fenner & Smith Incorporated...................8-7221
Smith Barney Inc.....................................................8-8177
PaineWebber Incorporated............................................8-16267
Prudential Securities Incorporated..................................8-27154
Dean Witter Reynolds Inc............................................8-14172
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The Internal Revenue Service Employer Identification Numbers of
the Sponsors and Trustee are as follows:
Merrill Lynch, Pierce, Fenner & Smith Incorporated 13-5674085
Smith Barney Inc. 13-1912900
PaineWebber Incorporated 13-2638166
Prudential Securities Incorporated 22-2347336
Dean Witter Reynolds Inc. 94-0899825
The Chase Manhattan Bank 13-4994650
II-1
Final prospectuses from the following Series of Municipal Investment
Trust Fund, Defined Asset Funds (which is incorporated herein by reference)
may be used as preliminary prospectuses for this Monthly Payment Series -
568 (Reg. No. 333-01355); Monthly Payment Series - 569 (Reg. No. 333-
01983); Monthly Payment Series - 570 (Reg. No. 333-02657).
CONTENTS OF REGISTRATION STATEMENT
THE REGISTRATION STATEMENT ON FORM S-6 COMPRISES THE FOLLOWING PAPERS AND
DOCUMENTS:
The facing sheet of Form S-6.
The Cross-Reference Sheet (incorporated by reference to the
Cross-Reference Sheet to the Registration Statement of Municipal
Investment Trust Fund, Three Hundred Tenth Monthly Payment Series,
1933 Act File No. 2-88372).
The Prospectus.
Additional Information not included in the Prospectus (Part II).
The following exhibits:
1.1 -- Form of Trust Indenture (incorporated by reference to
Exhibit 1.1 to the Registration Statement of Municipal
Investment Trust Fund, Monthly Payment Series-533,
Defined Asset Funds, 1933 Act File No. 33-50121).
1.1.1 -- Form of Standard Terms and Conditions of Trust Effective
October 21, 1993 (incorporated by reference to Exhibit
1.1.1 to the Registration Statement of Municipal
Investment Trust Fund, Multistate Series-48, Defined
Asset Funds, 1933 Act File No. 33-50247).
1.2 -- Form of Master Agreement Among Underwriters (incorporated
by reference to Exhibit 1.2 to the Registration Statement
of The Corporate Income Fund, One Hundred Ninety-Fourth
Monthly Payment Series, 1933 Act File No. 2-90925).
1.3 -- Restated Certificate of Incorporation of Merrill Lynch,
Pierce, Fenner & Smith Incorporated as amended through
December 16, 1987.
1.4 -- By-Laws of Merrill Lynch, Pierce, Fenner & Smith
Incorporated as amended through November 7, 1990.
1.5 -- Restated Certificate of Incorporation of Smith Barney
Shearson Inc. as amended through May 23, 1994.
1.6 -- By-Laws of Smith Barney Inc. as amended through
April 20, 1995.
1.7 -- Restated Certificate of Incorporation of PaineWebber
Incorporated as amended through June 10, 1991.
1.8 -- By-Laws of PaineWebber Incorporated as amended effective
June 10, 1991.
1.9 -- Restated Certificate of Incorporation of Prudential
Securities Incorporated as amended through March 25, 1993.
1.10 -- Revised Bylaws of Prudential Securities Incorporated as
amended through March 25, 1996.
1.11 -- Certificate of Incorporation of Dean Witter Reynolds
Inc. as amended through January 3, 1978.
1.12 -- By-Laws of Dean Witter Reynolds Inc. as amended through
April 25, 1989.
2.1 -- Form of Certificate of Beneficial Interest (included in
Exhibit 1.1.1).
*3.1 -- Opinion of counsel as to the legality of the securities
being issued including their consent to the use of their
names under the headings "Taxes" and "Miscellaneous-
Legal Opinion" in the Prospectus.
*4.1 -- Consent of the Evaluator.
*5.1 -- Consent of independent public accountants.
__________
* To be filed with Amendment to the Registration Statement.
R-1
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT OR AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED
THEREUNTO DULY AUTHORIZED IN THE CITY OF NEW YORK AND STATE OF NEW YORK ON
THE 17TH DAY OF JULY, 1996.
Signatures appear on pages R-3, R-4, R-5, R-6 and R-7.
A majority of the members of the Board of Directors of Merrill Lynch,
Pierce, Fenner & Smith Incorporated has signed this Registration Statement
or Amendment to the Registration Statement pursuant to Powers of Attorney
authorizing the person signing this Registration Statement or Amendment to
the Registration Statement to do so on behalf of such members.
A majority of the members of the Board of Directors of Smith Barney
Inc. has signed this Registration Statement or Amendment to the
Registration Statement pursuant to Powers of Attorney authorizing the
person signing this Registration Statement or Amendment to the Registration
Statement to do so on behalf of such members.
A majority of the members of the Executive Committee of the Board of
Directors of PaineWebber Incorporated has signed this Registration
Statement or Amendment to the Registration Statement pursuant to Powers of
Attorney authorizing the person signing this Registration Statement or
Amendment to the Registration Statement to do so on behalf of such members.
A majority of the members of the Board of Directors of Prudential
Securities Incorporated has signed this Registration Statement or Amendment
to the Registration Statement pursuant to Powers of Attorney authorizing
the person signing this Registration Statement or Amendment to the
Registration Statement to do so on behalf of such members.
A majority of the members of the Board of Directors of Dean Witter
Reynolds Inc. has signed this Registration Statement or Amendment to the
Registration Statement pursuant to Powers of Attorney authorizing the
person signing this Registration Statement or Amendment to the Registration
Statement to do so on behalf of such members.
R-2
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEPOSITOR
By the following persons, who constitute a Powers of Attorney have been
majority of the Board of Directors of filed under Form SE and
Merrill Lynch, Pierce, Fenner & Smith the following 1933 Act
Incorporated: File Number: 33-43466
HERBERT M. ALLISON, JR.
BARRY S. FRIEDBERG
EDWARD L. GOLDBERG
STEPHEN L. HAMMERMAN
JEROME P. KENNEY
DAVID H. KOMANSKY
DANIEL T. NAPOLI
THOMAS H. PATRICK
JOHN L. STEFFENS
DANIEL P. TULLY
ROGER M. VASEY
ARTHUR H. ZEIKEL
By ERNEST V. FABIO
(As authorized signatory for
Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Attorney-in-fact for the persons listed above)
R-3
SMITH BARNEY INC.
DEPOSITOR
By the following persons, Powers of Attorney have
who constitute a majority of been filed under the
the Board of Directors of 1933 Act File
Smith Barney Inc.: Numbers: 33-49753
and 33-51607
STEVEN D. BLACK
JAMES BOSHART III
ROBERT A. CASE
JAMES DIMON
ROBERT DRUSKIN
JEFFREY LANE
ROBERT H. LESSIN
By KEVIN E. KOPCZYNSKI
(As authorized signatory for
Smith Barney Inc. and
Attorney-in-fact for the persons listed above)
R-4
PAINEWEBBER INCORPORATED
DEPOSITOR
By the following persons, who Powers of Attorney have
constitute a majority of the been filed under
Executive Committee of the Form SE and the
Board of Directors of following 1933 Act
PaineWebber Incorporated: File Number: 33-55073
DONALD J. MARRON
JOSEPH J. GRANO
By ROBERT E. HOLLEY
(As authorized signatory for
PaineWebber Incorporated and
Attorney-in-fact for the persons listed above)
R-5
PRUDENTIAL SECURITIES INCORPORATED
DEPOSITOR
By the following persons, Powers of Attorney have been
who constitute a majority of filed under Form SE and
the Executive Committee of the following 1933 Act
the Board of Directors of File Number: 33-41631
Prudential Securities Incorporated:
ALAN D. HOGAN
GEORGE A. MURRAY
LELAND B. PATON
HARDWICK SIMMONS
By RICHARD R. HOFFMANN
(As authorized signatory for
Prudential Securities Incorporated
and Attorney-in-fact for the persons listed above)
R-6
DEAN WITTER REYNOLDS INC.
DEPOSITOR
By the following persons, Powers of Attorney have been
who constitute a majority of filed under Form SE and
the Board of Directors of the following 1933 Act
Dean Witter Reynolds Inc.: File Number: 33-17085
NANCY DONOVAN
CHARLES A. FIUMEFREDDO
JAMES F. HIGGINS
STEPHEN R. MILLER
PHILIP J. PURCELL
THOMAS C. SCHNEIDER
WILLIAM B. SMITH
By MICHAEL D. BROWNE
(As authorized signatory for
Dean Witter Reynolds Inc. and
Attorney-in-fact for the persons listed above)
R-7
EXHIBIT 1.3
RESTATED CERTIFICATE OF INCORPORATION
OF
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
__________________
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, a
corporation organized and existing under the laws of the State of Delaware,
hereby certifies as follows:
1. The name of the Corporation is Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
2. The date of filing of its original Certificate of
Incorporation with the Secretary of State was November 10, 1958.
3. In accordance with the provisions of Sections 245 & 242
of the General Corporation Law of the State of Delaware, this Restated
Certificate of Incorporation was duly adopted on December 16, 1987 by the
unanimous written consent of the sole stockholder of the said Corporation,
after having received the recommendation of the Board of Directors, as
permitted under Section 228 of the General Corporation Law of the State of
Delaware and under Article II, Section 11 of the Corporation's By-Laws.
4. The text of the Restated Certificate of Incorporation is
as follows:
ARTICLE I
NAME
The name of the Corporation is Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name and address of the
Corporation's registered agent is The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
ARTICLE III
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares, Classes and Series Authorized. The total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue is two thousand two hundred (2200) shares, of which
one thousand two hundred (1200) shares shall be Common Stock of the par value
of one thousand dollars ($1000) each (hereinafter called "Common Stock") and
one thousand (1000) shares shall be Preferred Stock of the par value of
twenty-five dollars ($25) each (hereinafter called "Preferred Stock").
The Preferred Stock is hereby authorized to be issued from time
to time in one or more series, the shares of each series to have such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof and may be convertible
into, or exchangeable for, at the option of either the holder or the
Corporation or upon the happening of a specified event, shares of any other
class or classes or any other series of the same or any other class or classes
of capital stock of the Corporation at such prince or prices or at such rate
or rates of exchange and with such adjustments as shall be stated and
expressed in the Certificate of Incorporation or of any amendment thereto or
in the resolution or resolutions adopted by the Board of Directors providing
for the issue thereof.
SECTION 2. Description of Capital Stock. The following is a
description of each of the classes of capital stock which the Corporation has
authority to issue with the designations, preferences, voting powers and
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof:
A. RIGHTS AND RESTRICTIONS OF PREFERRED STOCK. Authority is
hereby expressly vested in the Board of Directors of the Corporation, subject
to the provisions of this Article IV and to the limitations prescribed by law,
to authorize the issue from time to time of one or more series of Preferred
Stock and with respect to each such series to fix by resolution or resolutions
adopted by the affirmative vote of a majority of the whole Board of Directors
providing for the issue of such series the voting powers, full or limited, if
any, of the shares of such series and the designations, preferences and
relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be
limited to, the determination or fixing of the following:
(a) The designation of such series.
(b) The dividend rate of such series, the conditions and
dates upon which such dividends shall be payable, the relation which
such dividends shall bear to the dividends payable on any other class
or classes or series of the Corporation's capital stock, and whether
such dividends shall be cumulative or non-cumulative.
(c) Whether the shares of such series shall be subject to
redemption for cash, property or rights, including securities of any
other corporation, by the Corporation at the option of either the
Corporation or the holder of both or upon the happening of a specified
event, and, if made subject to any such redemption, the times or
events, prices and other terms and conditions of such redemption.
(d) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(e) Whether or not the shares of such series shall be
convertible into, or exchangeable for, at the option of either the
holder or the Corporation or upon the happening of a specified event,
shares of any other class or classes or of any other series of the
same or any other class or classes of the Corporation's capital
stock, and, if provisions be made for conversion or exchange, the
times or events, prices, rates, adjustments and other terms and
conditions of such conversions or exchanges.
(f) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock.
(g) The rights of the holders of the shares of such series
upon the voluntary or involuntary liquidation, dissolution or winding
up of the Corporation.
(h) The provisions as to voting, optional and/or other
special rights and preferences, if any.
B. RIGHTS AND RESTRICTIONS OF COMMON STOCK. The powers,
preferences, rights, qualifications, limitations or restrictions thereof in
respect to the Common Stock are as follows:
(a) The Common stock is junior to the Preferred Stock and is
subject to all the powers, rights, privileges, preferences and
priorities of the Preferred Stock as herein or in any resolution or
resolutions adopted by the Board of Directors pursuant to authority
expressly vested in it by the provisions of Section 2 of this Article.
(b) Except to the extent, if any, that the law may prohibit
the denial by the Certificate of Incorporation of the right to vote
to the Preferred Stock, and except as expressly provided in the
Certificate of Incorporation or in any resolution or resolutions
adopted by the Board of Directors pursuant to authority expressly
vested in it by the provisions of Section 2 of this Article with
respect to the Preferred Stock, the Common Stock shall have the
exclusive voting rights for the election of directors and for all
other purposes, each holder of Common Stock being entitled to one
vote for each share thereof held by such holder, except as otherwise
required by law.
C. INCREASE OR DECREASE IN AMOUNT OF AUTHORIZED SHARES. The
number of authorized shares of any class or classes of capital stock of the
Corporation may be increased or decreased by an amendment to this Certificate
of Incorporation authorized by the affirmative voting of the holders of a
majority of the shares of the Common Stock outstanding.
ARTICLE V
DENIAL OF PREEMPTIVE RIGHTS
No holder of any class of capital stock of the Corporation,
whether now or hereafter authorized, shall be entitled, as such, as a matter
of right, to subscribe for or purchase any part of any new or additional issue
of capital stock of the Corporation of any class whatsoever, or of securities
convertible into or exchangeable for capital stock of the Corporation of any
class whatsoever, whether now or hereafter authorized, or whether issued for
cash, property or services.
ARTICLE VI
RESTRICTION ON DIVIDENDS
No dividend shall be declared or paid which shall impair the
capital of the Corporation nor shall any distribution of assets be made to any
holder of the Corporation's capital stock unless the value of the assets of
the Corporation remaining after such payment or distribution is at lease equal
to the aggregate of its debts and liabilities, including capital. A member of
the Board of Directors, or a member of any Committee designated by the Board
of Directors, shall be fully protected in relying in good faith upon the
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors, or by any other person as to matters the
director reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on
behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts
pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid, or with which the Corporation's
stock might properly be purchased or redeemed.
ARTICLE VII
REDEMPTION OR CONVERSION OF STOCK
The Corporation may redeem or convert to a fixed income
security all of any part of its outstanding shares of voting stock owned by
any person required to be approved by the Board of Directors of the New York
Stock Exchange, Inc. as a member, allied member or approved person who fails or
ceases to be so approved as may be necessary to reduce such party's ownership
of voting stock in the Corporation below that level which enables such party
to exercise controlling influence over the management or policies of the
Corporation.
ARTICLE VIII
STOCKHOLDERS VOTE REQUIRED IN CONNECTION WITH MERGER,
CONSOLIDATION, SALE OF ASSETS OR DISSOLUTION
Notwithstanding anything contained herein or in the General
Corporation Law of the State of Delaware, the Corporation shall not (a) merge
or consolidate with any one or more corporations, joint-stock associations or
non-stock corporations (other than in a merger not requiring any vote of
stockholders of the Corporation under the General Corporation Law of the State
of Delaware), (b) sell, lease or exchange all or substantially all of its
property and assets, or (c) dissolve, unless the Board of Directors shall, at
a meeting duly called, adopt a resolution, passed by two-thirds (2/3) of the
whole Board of Directors, approving such action and unless such action shall be
approved at a meeting by a vote of the holders of a majority of the shares of
the Common Stock outstanding and entitled to vote thereon and, except as
otherwise provided by law, no vote by holders of capital stock of the
Corporation other than Common Stock shall be required to approve such action.
ARTICLE IX
CORPORATE EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE X
NO LIABILITY OF HOLDERS OF CAPITAL STOCK FOR CORPORATE DEBTS
The holders of the capital stock of the Corporation shall not
be personally liable for the payment of the Corporation's debts and the
private property of the holders of the capital stock of the Corporation shall
not be subject to the payment of debts of the Corporation to any extent
whatsoever.
ARTICLE XI
POWERS OF BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized:
(a) To adopt, alter, amend, or repeal the By-Laws, except as
otherwise expressly provided in any By-Law adopted by the holders of
the capital stock of the Corporation entitled to vote thereon. Any
By-Law may be altered, amended or repealed by the holders of the
capital stock of the Corporation entitled to vote thereon at any
annual meeting or at any special meeting called for that purpose.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus and
net profits of the Corporation, including the determination of the
amount of working capital required, to set apart out of any of the
funds of the Corporation, whether or not available for dividends, a
reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
(d) To designate, by resolution adopted by a majority of the
whole Board of Directors, one or more committees, each committee to
consist of two or more directors of the Corporation, which, to the
extent provided in the resolution designating the committee or in the
By-Laws of the Corporation, shall, subject to the limitations
prescribed by law, have and may exercise all the powers and authority
of the Board of Directors in the management of the business and
affairs of the Corporation and may 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
provided in the By-Laws of the Corporation or as may be determined
from time to time by resolution adopted by the Board of Directors.
(e) To adopt or assume and carry out such plans as may from
time to time be approved by it for the distribution among the
officers or employees of the Corporation and of any corporation, firm
or other business entity which is a subsidiary of the Corporation or
in which the Corporation has a substantial investment, or any of
them, in addition to their regular salaries or wages, of part of the
earnings of the Corporation and of any corporation, firm or other
business entity which is a subsidiary of the Corporation or in which
the Corporation has a substantial investment, or any of them, in
consideration for or in recognition of the services rendered by such
officers or employees or as an inducement to future efforts. No such
plan which is not at the time of adoption or assumption unreasonable
or unfair shall be invalidated or in any way affected because any
director shall be a beneficiary thereunder or shall vote for any plan
under which he may benefit or for any distribution thereunder in
which he may participate.
(f) To adopt such pension, retirement, deferred compensation
or other employee benefit plans or provisions as may, from time to
time, be approved by it, providing for pensions, retirement income,
deferred compensation or other benefits for officers or employees of
the Corporation and of any corporation, firm or other business entity
which is a subsidiary of the Corporation or in which the Corporation
has a substantial investment, or any of them, in consideration for or
in recognition of the services rendered by such officers or employees
or as an inducement to future efforts. No such plan or provision,
which is not at the time of adoption unreasonable or unfair, shall be
invalidated or in any way affected because any director shall be a
beneficiary thereunder or shall vote for any plan or provision under
which he may benefit.
(g) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of
the laws of the State of Delaware and of the Certificate of
Incorporation and of the By-Laws of the Corporation.
ARTICLE XII
MEETINGS AND CONSENTS OF STOCKHOLDERS AND DIRECTORS;
CORPORATION BOOKS; ELECTIONS OF DIRECTORS
Meetings of holders of capital stock of the Corporation and of
the Board of Directors and of any committee thereof may be held outside the
State of Delaware if the By-Laws shall so provide. Except as otherwise
provided by law or by the Certificate of Incorporation of the Corporation any
action required to be taken at any annual or special meeting of stockholders
of the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by the holders of outstanding capital stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting as provided by statute, if
the By-Laws of the Corporation shall so provide. Except as otherwise provided
by law, the books of the Corporation may be kept outside the State of Delaware
at such place or places as may be designated from time to time by the Board of
Directors or in the By-Laws of the Corporation. The elections of directors
need not be by ballot unless the By-Laws of the Corporation shall so provide.
ARTICLE XIII
TRANSACTIONS WITH DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose
if, (a) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or the committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested directors be
less than a quorum, or (b) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders, or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
ARTICLE XIV
LIMITATION OF DIRECTORS' LIABILITY;
INDEMNIFICATION BY CORPORATION
SECTION 1. Limitation of Directors' Liability. (a) No
director of the Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except, to the extent provided by applicable law, for liability (i)
for breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of
directors, then the liability of each director of the Corporation shall be
limited or eliminated to the full extent permitted by the Delaware General
Corporation law as so amended from time to time.
(b) Neither the amendment nor repeal of this Section 1, nor
the adoption of any provision of the Certificate of Incorporation inconsistent
with this Section 1, shall eliminate or reduce the effect of this Section 1,
in respect of any matter occurring, or any cause of action, suit or claim
that, but for this Section 1, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
SECTION 2. Indemnification by Corporation. (a) The
Corporation shall indemnify any person who is or was a director or officer of
the Corporation, with respect to actions taken or omitted by such person in
any capacity in which such person serves the Corporation, to the full extent
authorized or permitted by law, as now or hereafter in effect, and such right
to indemnification shall continue as to a person who has ceased to be a
director or officer, as the case may be, and shall inure to the benefit of such
person's heirs, executors and personal and legal representatives; provided,
however, that, except for proceedings to enforce rights to indemnification, the
Corporation shall not be obligated to indemnify any person in connection with
a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized in advance, or unanimously consented to, by
the Board of Directors of the Corporation.
(b) Directors and officers of the Corporation shall have the
right to be paid by the Corporation expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
(c) The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation.
(d) The rights to indemnification and to the advancement of
expenses conferred in this Section 2 shall not be exclusive of any other right
that any person may have or hereafter acquire under this Certificate of
Incorporation, the By-Laws, any statute, agreement, vote of stockholders or
disinterested directors, or otherwise .
(e) Any repeal or modification of this Section 2 by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to advancement of expenses that any person may have at the
time of such repeal or modification with respect to any acts or omissions
occurring prior to such repeal or modification.
ARTICLE XV
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or a class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as consequence
of such compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE XVI
RESERVATION OF RIGHT TO AMEND CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all the provisions of this
Certificate of Incorporation and all rights and powers conferred in this
Certificate of Incorporation on stockholders, directors and officer are
subject to this reserved power.
IN WITNESS WHEREOF, said MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED has caused this certificate to be signed by an Executive Vice
President, with its corporate seal to be hereunto duly affixed and to be
attested by its Secretary this ____ day of ___________, 1987.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
CORPORATE SEAL By:_________________________
Stephen L. Hammerman
Executive Vice President
Attest:
_________________________
Stephen M. M. Miller
Secretary
EXHIBIT 1.4
==============================================================================
BY-LAWS
OF
MERRILL LYNCH, PIERCE, FENNER & SMITH
Incorporated
As Amended through November 7, 1990
==============================================================================
INDEX
to
BY-LAWS
of
MERRILL LYNCH, PIERCE, FENNER & SMITH
Incorporated
PAGE
----
ARTICLE I -- OFFICES.................................................... 1
ARTICLE II -- MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting............................ 1
Section 2. Special Meetings.......................... 1
Section 3. Notice of Meetings........................ 1
Section 4. Waiver of Notice.......................... 2
Section 5. Organization.............................. 2
Section 6. Judges.................................... 2
Section 7. Stockholders Entitled to Vote............. 2
Section 8. Quorum and Adjournment.................... 3
Section 9. Order of Business......................... 3
Section 10. Vote of Stockholders...................... 3
Section 11. Consent of Stockholders in Lieu of
Meeting.................................... 4
ARTICLE III -- BOARD OF DIRECTORS
Section 1. Election and Term......................... 4
Section 2. Qualification............................. 4
Section 3. Number.................................... 4
Section 4. General Powers............................ 4
Section 5. Place of Meetings......................... 5
Section 6. Organization Meeting...................... 5
Section 7. Regular Meetings.......................... 5
Section 8. Special Meetings; Notice and Waiver of
Notice.................................... 5
Section 9. Organization of Meetings.................. 6
Section 10. Quorum and Manner of Acting............... 6
Section 11. Voting.................................... 6
Section 12. Action without a Meeting.................. 6
Section 13. Resignations.............................. 6
Section 14. Removal of Directors...................... 7
Section 15. Filling of Vacancies...................... 7
Section 16. Directors' Compensation................... 7
ARTICLE IV -- EXECUTIVE COMMITTEE
Section 1. Constitution and Powers................... 7
Section 2. Place of Meetings......................... 8
Section 3. Meetings; Notice and Waiver of Notice..... 8
Section 4. Organization of Meetings.................. 8
Section 5. Quorum and Manner of Acting............... 8
Section 6. Voting.................................... 9
Section 7. Records................................... 9
Section 8. Vacancies................................. 9
Section 9. Members' Compensation..................... 9
ARTICLE V -- OTHER COMMITTEES
Section 1. Other Committees.......................... 9
Section 2. Time and Place of Meetings; Manner of
Acting; Notice and Waiver of Notice....... 10
Section 3. Emergency Management Committee............ 10
Section 4. Members' Compensation..................... 11
ARTICLE VI -- THE OFFICERS
Section 1. Officers - Qualifications................. 11
Section 2. Term of Office; Vacancies................. 11
Section 3. Removal of Elected Officers............... 11
Section 4. Registrations............................. 12
Section 5. Officers Holding More Than One Office..... 12
Section 6. The Chairman of the Board................. 12
Section 7. The President............................. 12
Section 8. The Vice Chairmen of the Board............ 13
Section 9. The Chairman of the Executive Committee... 13
Section 10. The Executive Vice Presidents............. 13
Section 11. The Senior Vice Presidents................ 13
Section 12. The First Vice Presidents................. 13
Section 13. The Vice Presidents....................... 13
Section 14. The Secretary............................. 13
Section 15. The Treasurer............................. 14
Section 16. Additional Duties and Authority........... 14
Section 17. Compensation.............................. 14
ARTICLE VII -- STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates........................ 14
Section 2. Transfers of Stock........................ 15
Section 3. Lost Certificates......................... 15
Section 4. Determination of Stockholders of Record
for Certain Purposes...................... 15
ARTICLE VIII -- CORPORATE SEAL
Section 1. Seal...................................... 16
Section 2. Affixing and Attesting.................... 16
ARTICLE IX -- MISCELLANEOUS
Section 1. Fiscal Year............................... 16
Section 2. Signatures on Negotiable Instruments...... 16
Section 3. References to Article and Section Numbers
and to the By-Laws and the Certificate of
Incorporation............................. 16
ARTICLE X -- AMENDMENTS................................................. 17
BY-LAWS
OF
MERRILL LYNCH, PIERCE, FENNER & SMITH
Incorporated
ARTICLE I
OFFICES
Merrill Lynch, Pierce, Fenner & Smith Incorporated (hereinafter
called the "Corporation") may establish or discontinue, from time to time,
such offices and places of business within or without the State of Delaware as
the Board of Directors may deem proper for the conduct of the Corporation's
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the holders
of shares of such classes or series of stock as are entitled to notice thereof
and to vote thereat pursuant to the provisions of the Certificate of
Incorporation (hereinafter called the "Annual Meeting of Stockholders") for
the purpose of electing directors and transacting such other business as may
come before it shall be held in each year at such time, on such day and at
such place, within the State of Delaware, as shall be designated by the Board
of Directors.
Section 2. Special Meetings. In addition to such special
meetings as are provided for by law or by the Certificate of Incorporation,
special meetings of the holders of any class or series or of all classes or
series of the Corporation's stock may be called at any time by the Board of
Directors and may be held at such time, on such day and at such place, within
or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 3. Notice of Meetings. Except as otherwise provided
by law, written notice of each meetings of stockholders shall be given either
by delivering a notice personally or mailing a notice to each stockholder of
record entitled to vote thereat. If mailed, the notice shall be directed to
the stockholder in a postage-prepaid envelope at his address as it appears on
the stock books of the Corporation unless, prior to the time of mailing, he
shall have filed with the Secretary a written request that notices intended
for him be mailed to some other address, in which case it shall be mailed to
the address designated in such request. Notice of each meeting of
stockholders shall be in such form as is approved by the Board of Directors
and shall state the purpose or purposes for which the meeting is called, the
date and time when and the place where it is to be held, and shall be
delivered personally or mailed not more than fifty (50) days and not less than
ten (10) days before the day of the meeting. Except as otherwise provided by
law, the business which may be transacted at any such meeting of stockholders
shall consist of and be limited to the purpose or purposes so stated in such
notice. The Secretary or an Assistant Secretary or the Transfer Agent of the
Corporation shall, after giving such notice, make an affidavit stating that
notice has been given, which shall be filled with the minutes of such meeting.
Section 4. Waiver of Notice. Whenever notice is required to
be given under any provision of law or of the Certificate of Incorporation or
the By-Laws, a waiver thereof in writing or by telegraph, cable or other form
of recorded communication, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting of stockholders shall constitute a waiver
of notice of such meeting, except when the person attends such meetings for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of stockholders need be specified in any waiver of notice unless so
required by the Certificate of Incorporation.
Section 5. Organization. The Chairman of the Board shall act
as chairman at all meetings of stockholders at which he is present, and as
such chairman shall call such meetings of stockholders to order and preside
thereat. If the Chairman of the Board shall be absent from any meeting of
stockholders, the duties otherwise provided in this Section 5 of Article II to
be performed by him at such meeting shall be performed at such meeting by the
officer prescribed by Section 6 of Article VI. The Secretary of the
Corporation shall act as secretary at all meetings of the stockholders, but in
his absence the chairman of the meeting may appoint any person present to act
as secretary of the meeting.
Section 6. Judges. All votes by ballot at any meeting of
stockholders shall be conducted by two judges, who need not be stockholders,
who shall, except as otherwise provided by law, be appointed for that purpose
by the chairman of the meeting. The judges shall decide upon the
qualifications of votes, count the votes and declare the result.
Section 7. Stockholders Entitled to Vote. The Board of
Directors may fix a date not more than sixty (60) days nor less than ten (10)
days prior to the date of any meeting of stockholders, or prior to the last
day on which the consent or dissent of stockholders may be effectively
expressed for any purpose without a meeting, as a record date for the
determination of the stockholders entitled to notice of and to vote at such
meeting and any adjournment thereof, or to give such consent or express such
dissent, and in such case such stockholders and only such stockholders as
shall be stockholders of record on the date so fixed shall be entitled to
notice of, and to vote at, such meeting and any adjournment thereof, or to
give such consent or express such dissent, as the case may be, notwithstanding
any transfer of any stock on the books of the Corporation after any such
record date fixed as aforesaid. The Secretary shall prepare and make or cause
to be prepared and made, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order and showing the address of each such
stockholder and the number of shares registered in the name of each such
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place,
specified in the notice of the meeting, within the city where the meeting is
to be held. Such list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and subject to the inspection of any
stockholder who may be present.
Section 8. Quorum and Adjournment. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the shares of stock entitled to vote at the meeting present in
person or by proxy without regard to class or series shall constitute a quorum
at all meetings of the stockholders. In the absence of a quorum, the holders
of a majority of such shares of stock present in person or by proxy may
adjourn any meeting, from time to time, until a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally called. No notice of any adjourned meeting need be given other
than by announcement at the meeting that is being adjourned, provided that if
the adjournment is for more than thirty (30) days, or if after the adjournment
a new record date is fixed for the adjourned meeting, then a notice of the
adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. Order of Business. The order of business at all
meetings of stockholders shall be as determined by the chairman of the meeting
or as is otherwise determined by the vote of the holders of a majority of the
shares of stock present in person or by proxy and entitled to vote without
regard to class or series at the meeting.
Section 10. Vote of Stockholders. Except as otherwise
permitted by law or by the Certificate of Incorporation or by the By-Laws, all
action by stockholders shall be taken at a stockholders' meeting. Every
stockholder of record, as determined pursuant to Section 7 of this Article II,
and who is entitled to vote, shall, except as otherwise expressly provided in
the Certificate of Incorporation with respect to any class or series of the
Corporation's capital stock, be entitled at every meeting of the stockholders
to one vote for every share of stock standing in his name on the books of the
Corporation. Every stockholder entitled to vote or to express consent or
dissent to corporate action in writing without a meeting may authorize another
person or persons to act for him by proxy duly appointed by an instrument in
writing, subscribed by such stockholder and executed not more than three (3)
years prior to the meeting, unless the instrument provides for a longer
period. The attendance at any meeting of stockholders of a stockholder who
may theretofore have given a proxy shall not have the effect of revoking such
proxy unless such stockholder shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. Election of directors shall be by
written ballot but, unless otherwise provided by law, no vote on any question
upon which a vote of the stockholders may be taken need by ballot unless the
chairman of the meeting shall determine that it shall be by ballot or the
holders of a majority of the shares of stock present in person or by proxy and
entitled to participate in such vote shall so demand. In a vote by ballot
each ballot shall state the number of shares voted and the name of the
stockholder or proxy voting. Except as otherwise provided by law, by the
Certificate of Incorporation or by Section 14 of Article III, all elections of
directors and all questions shall be decided by the vote of the holders of a
majority of the shares of stock present in person or by proxy at the meeting
and entitled to vote in the election or on the question.
Section 11. Consent of Stockholders in Lieu of Meeting. Except
as otherwise provided by law or by the Certificate of Incorporation, any
action required to be taken, or which may be taken, at any meeting of
stockholders may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of shares of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares of stock entitled to vote thereon were
present and voted; provided, that prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Election and Term. Except as otherwise provided by
law or by the Certificate of Incorporation, and subject to the provisions of
Section 2, 13, 14 and 15 of this Article III, directors shall be elected at
the Annual Meeting of Stockholders to serve until the next annual meeting of
stockholders and until their successors are elected and qualify or until their
earlier resignation or removal.
Section 2. Qualification. If required by any securities
exchange, board of trade, commodities exchange, clearing corporation or
association, or similar institution on which the Corporation has membership
privileges, no one shall be a director who is not the record and beneficial
owner of shares of capital stock of the Corporation. Directors shall, if
required by any securities exchange, board of trade, commodities exchange,
clearing corporation or association, or similar institution on which the
Corporation has membership privileges, be approved by such institution.
Whenever any director ceases to be of record and beneficial owner of shares of
capital stock or ceases to be approved by an institution on which the
Corporation has membership privileges, if such ownership or approval is
required, he shall thereupon also cease to be a director without any further
action on his part or on the part of the Board of Directors or the
stockholders. Acceptance of the office of director may be expressed orally or
in writing.
Section 3. Number. The number of directors may be fixed from
time to time by resolution of the Board of Directors or the stockholders but
shall not be less than three (3) nor more than thirty-five (35). To the
extent required by any securities exchange, board of trade, commodities
exchange, clearing corporation or association, or similar institution on which
the Corporation has membership privileges, directors shall be selected from or
include members, allied members or persons holding similar status with such
institutions.
Section 4. General Powers. The business, properties and
affairs of the Corporation shall be managed by the Board of Directors, which,
without limiting the generality of the foregoing, shall have power to elect
and appoint officers of the Corporation, to appoint and direct agents, to
grant general or limited authority to officers, employees and agents of the
Corporation to make, execute and deliver contracts and other instruments and
documents in the name and on behalf of the Corporation and over its seal,
without specific authority, in each case, and, by resolution adopted by a
majority of the whole Board of Directors, to appoint committees of the Board
of Directors in addition to those provided for in Article IV and Article V
hereof, the membership of which may consist of one or more directors, and
which may advise the Board of Directors with respect to any matters relating to
the conduct of the Corporation's business. The Board of Directors may
designate one or more directors as alternate members of any committee,
including those provided for in Article IV and Article V hereof, who may
replace any absent or disqualified member at any meeting of the committee. In
addition, the Board of Directors may exercise all the powers of the
Corporation and do all lawful acts and things which are not reserved to the
stockholders by law or by the Certificate of Incorporation.
Section 5. Place of Meetings. Meetings of the Board of
Directors may be held at any place, within or without the State of Delaware,
from time to time designated by the Board of Directors.
Section 6. Organization Meeting. A newly elected Board of
Directors shall meet and organize, and also may transact any other business
which might be transacted at a regular meeting thereof, as soon as practicable
after each Annual Meeting of Stockholders, at the place of which such meeting
of stockholders took place, without notice of such meeting, provided a
majority of the whole Board of Directors is present. If such a majority is
not present, such organization meeting may be held at any other time or place
which may be specified in a notice given in the manner provided in Section 8
of this Article III for special meetings of the Board of Directors, or in a
waiver of notice thereof.
Section 7. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as may be determined by resolution of
the Board of Directors and no notice shall be required for any regular
meeting. Except as otherwise provided by law, any business may be transacted
at any regular meeting of the Board of Directors.
Section 8. Special Meetings; Notice and Waiver of Notice.
Special meetings of the Board of Directors shall be called by the Secretary on
the request of the Chairman of the Board or the President, or on the request
in writing of any three other directors stating the purpose or purposes of
such meeting. Notice of any special meeting shall be in form approved by the
Chairman of the Board or the President, as the case may be. Notices of
special meetings shall be mailed to each director, addressed to min at his
residence or usual place of business, not later than two (2) days before the
day on which the meeting is to be held, or shall be sent to him at such place
by telegraph, cable or other form of recorded communication or be delivered
personally or by telephone, not later than the day before such day of meeting.
Notice of any meeting of the Board of Directors need not be given to any
director if he shall sign a written waiver thereof either before or after the
time stated therein, or if he shall attend a meeting, except when he attends
such meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any special meeting of the Board of Directors need be specified in
any notice or written waiver of notice unless so required by the Certificate
of Incorporation or by the By-Laws. Unless limited by law, by the Certificate
of Incorporation or by the By-Laws, any and all business may be transacted at
any special meeting.
Section 9. Organization of Meetings. The Chairman of the
Board shall preside at all meetings of the Board of Directors at which he is
present. If the Chairman of the Board shall be absent from any meeting of the
Board of Directors, the duties otherwise provided in this Section 9 of Article
III to be performed by him at such meetings shall be performed at such meeting
by the officer prescribed by Section 6 of Article VI. If no such officer is
present at such meeting, one of the directors present shall be chosen by the
members of the Board of Directors present to preside at such meeting. The
Secretary of the Corporation shall act as the secretary at all meetings of the
Board of Directors and in his absence a temporary secretary shall be appointed
by the chairman of the meeting.
Section 10. Quorum and Manner of Acting. Except as otherwise
provided by Section 6 of this Article III, at every meeting of the Board of
Directors one-third (1/3) of the total number of directors constituting the
whole Board of Directors shall constitute a quorum but in no event shall a
quorum be constituted by less than two (2) directors. Except as otherwise
provided by law or by the Certificate of Incorporation, or by Section 15(a) of
this Article III, or by Section 1 or Section 8 of Article IV, or by Section 2
of Article V or by Section 3 of Article VI, or by Article X, 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. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present. No notice of any adjourned meeting need
be given other than by announcement at the meeting that is being adjourned.
Members of the Board of Directors or any committee thereof may participate in
a meeting of the Board of Directors or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this Section 10 of Article III by such a person shall
constitute his presence in person at such meeting.
Section 11. Voting. On any question on which the Board of
Directors shall vote, the names of those voting and their votes shall be
entered in the minutes of the meeting if any member of the Board of Directors
so requests at the time.
Section 12. Action without a Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if prior to such action all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or the committee.
Section 13. Resignations. Any director may resign at any time
upon written notice of resignation to the Corporation. Any resignation shall
be effective immediately unless a date certain is specified for it to take
effect, in which event it shall be effective upon such date, and acceptance of
any resignation shall not be necessary to make it effective, irrespective of
whether the resignation is tendered subject to such acceptance.
Section 14. Removal of Directors. Any directors may be
removed, either for or without cause, at any time upon recommendation of the
Board of Directors, by action of the holders of a majority of the outstanding
shares of stock entitled to vote thereon either at a meeting of the holders of
such shares or, whenever permitted by law and the Certificate of
Incorporation, without a meeting by their written consents thereto.
Section 15. Filling of Vacancies. Except as otherwise provided
by law and the Certificate of Incorporation, in case of any increase in the
number of directors, or of any vacancy in the Board of Directors, the
additional director or directors may be filled, either (a) by the Board of
Directors at any meeting by affirmative vote of a majority of the remaining
directors though the remaining directors may be less than the quorum provided
in Section 10 of this Article III, or by a sole remaining director, or (b) by
the holders of capital stock of the Corporation entitled to vote thereon,
either at an Annual Meeting of Stockholders or at a special meeting of such
holders called for that purpose. The directors so chosen shall hold office
until the next Annual Meeting of Stockholders and until their successors are
elected and qualify or until their earlier resignation or removal.
Section 16. Directors' Compensation. Directors may receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as
the Board of Directors may from time to time determine. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
EXECUTIVE COMMITTEE
Section 1. Constitution and Powers. The Board of Directors
shall, by resolution adopted by affirmative vote of a majority of the whole
Board of Directors, appoint an Executive Committee, which shall have and may
exercise, during the intervals between meetings of the Board of Directors, all
the powers and authority of the Board of Directors in the management of the
business, properties and affairs of the Corporation, including authority to
take all action provided in the By-Laws to be taken by the Board of Directors;
provided, however, that the foregoing is subject to the application provisions
of law and shall not be construed as authorizing action by the Execution
Committee with respect to any action which pursuant to Section 15(a) of
Article III, this Section 1 and Section 8 of this Article IV, Section 2 of
Article V, Section 3 of Article VI and Article X is required to be taken by
vote of a specified proportion of the whole Board of Directors, or with
respect to action pursuant to Section 3 of Article III, or as granting the
Executive Committee the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets or
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution. The Executive Committee is expressly authorized
and empowered to authorize the issuance of stock and to declare dividends.
The Executive Committee shall consist of such number of directors as may from
time to time be designated by the Board of Directors, but shall not be less
than four (40 nor more than twelve (12) directors, including the ex officio
members. The Chairman of the Board, the President and, if one has been
elected, the Chairman of the Executive Committee shall be ex officio members
of the Executive Committee. So far as practicable, the members of the
Executive Committee, other than the ex officio members, shall be appointed at
the organization meeting of the Board of Directors in each year, and, unless
sooner discharged by affirmative vote of a majority of the whole Board of
Directors, shall hold office until the next Annual Meeting of Stockholders and
until their respective successors are appointed. All acts done and powers
conferred by the Executive Committee shall be deemed to be, and may be
certified as being, done or conferred under authority of the Board of
Directors.
Section 2. Place of Meetings. Meetings of the Executive
Committee may be held at any place, within or without the State of Delaware,
from time to time designated by the Board of Directors or the Executive
Committee.
Section 3. Meetings; Notice and Waiver of Notice. Regular
meetings of the Executive Committee shall be held at such times as may be
determined by resolution either of the Board of Directors or of the Executive
Committee and no notice shall be required for any regular meeting. Special
meetings of the Executive Committee shall be called by the Secretary upon
request of any two members thereof. Notice of any special meeting of the
Executive Committee shall be in form approved by the Chairman of the Executive
Committee, the Chairman of the Board or the President, as the case may be.
Notices of special meetings shall be mailed to each member, addressed to him
at his residence or usual place of business, not later than two (2) days
before the day on which the meeting is to be held, or shall be sent to him at
such place by telegraph, cable or any other form of recorded communication, or
be delivered personally or by telephone, not later than the day before such
day of meeting. Neither the business to be transacted at, nor the purpose of,
any special meeting of the Executive Committee need be specified in any notice
or written waiver of notice unless so required by the Certificate of
Incorporation or the By-Laws. Notices of any such meeting need not be given
to any member of the Executive Committee, however, if waived by him as
provided in Section 8 of Article III, and the provisions of such Section 8
with respect to waiver of notice of meetings of the Board of Directors shall
apply to meetings of the Executive Committee as well.
Section 4. Organization of Meetings. The Chairman of the
Executive Committee shall preside at all meetings of the Executive Committee
at which he is present. In the absence of the Chairman of the Executive
Committee, the most senior officer present who is an ex officio member of the
Executive Committee shall preside, and, in the absence of an ex officio member
of the Executive Committee, the most senior Executive Vice President shall
preside at such meeting, and, in the absence of all of the ex officio members
of the Executive Committee and of any Executive Vice President, one of the
members present shall be chosen by the members of the Executive Committee
present to preside at such meeting. The Secretary of the Corporation shall
act as secretary at all meetings of the Executive Committee and in his absence
a temporary secretary shall be appointed by the chairman of the meeting.
Section 5. Quorum and Manner of Acting. One-third (1/3) of the
members of the Executive Committee then in office, but not less than two (2),
shall constitute a quorum for the transaction of business, and the act of a
majority of those present at any meeting at which a quorum is present, shall
be the act of the Executive Committee. In the absence of a quorum, a majority
of the members of the Executive Committee present, or, if two or fewer members
shall be present, any member of the Executive Committee present or the
Secretary, may adjourn any meeting, from time to time, until a quorum is
present. No notice of any adjourned meeting need be given other than by
announcement at the meeting that is being adjourned. The provisions of
Section 10 of Article III with respect to participation in a meeting of a
committee of the Board of Directors and the provisions of Section 12 of
Article III with respect to action taken by a committee of the Board of
Directors without a meeting shall apply to participation in meetings of and
action taken by the Executive Committee.
Section 6. Voting. On any question on which the Executive
Committee shall vote, the names of those voting and their votes shall be
entered in the minutes of the meeting if any member of the Executive Committee
so requests at the time.
Section 7. Records. The Executive Committee shall keep
minutes of its acts and proceedings, which shall be available to any director
upon request.
Section 8. Vacancies. Any vacancy among the appointed members
or alternate members of the Executive Committee may be filled by affirmative
vote of a majority of the whole Board of Directors.
Section 9. Members' Compensation. Members of the Executive
Committee may receive such reasonable compensation for their services as such,
whether in the form of salary or a fixed fee for attendance at meetings, with
expenses, if any, as the Board of Directors may from time to time determine.
Nothing herein contained shall be construed to preclude any member of the
Executive Committee from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE V
OTHER COMMITTEES
Section 1. Other Committees. The Board of Directors may
appoint by affirmative vote of a majority of the whole Board of Directors a
Compensation Committee of the Board of Directors, which Compensation Committee
shall exercise primary responsibility on behalf of the Board of Directors for
reviewing the employee compensation, benefit, incentive and participation
programs, policies and practices of the Corporation and the budgets,
expenditures and allocations therefor, and, whenever any policy or
administrative function or duty is required of the Board of Directors or of
any committee thereof with respect to any salary programs, incentive
compensation programs, retirement and pension plans, profit sharing plans, and
stock option or stock purchase plans or similar plans, either of the
Corporation or of any subsidiary, affiliated or parent corporation, and for
the benefit of employees of any such corporation, the Compensation Committee
may exercise such policy or administrative functions and duties on behalf of
the Board of Directors, and, in addition, the Compensation Committee, if any,
shall fix, from time to time, the salaries, within any general limitations set
from time to time by the Board of Directors, paid by the Corporation to each
employee who is a member of the Board of Directors, and shall perform such
other duties related to compensation practices of the Corporation as may be
assigned to the Compensation Committee from time to time by the Board of
Directors, either directly or indirectly through the terms of any plan or
program adopted or established by the Board of Directors. The Board of
Directors may, by resolution adopted by affirmative vote of a majority of the
whole Board of Directors, appoint one or more other committees of the Board of
Directors which committees shall have such powers and duties as the Board of
Directors may properly determine. No such other committee of the Board of
Directors shall be composed of fewer than two (2) directors.
Section 2. Time and Place of Meetings; Manner of Acting;
Notice and Waiver of Notice. Meetings of committees of the Board of Directors
may be held at any place, within or without the State of Delaware, from time
to time designated by the Board of Directors, or the committee in question.
Regular meetings of any such committee shall be held at such times as may be
determined by resolution of the Board of Directors or the committee and no
notice shall be required for any regular meeting. A special meeting of any
such committee shall be called by resolution of the Board of Directors, or by
the secretary thereof upon the request of any member of the committee. The
provisions of Section 3 of Article IV with respect to notice and waiver of
notice of special meetings of the Executive Committee shall also apply to all
special meetings of other committees of the Board of Directors. Any such
committee may make rules for holding and conducting its meetings and shall
keep minutes thereof. The provisions of Section 10 of Article III with
respect to participation in a meeting of a committee of the Board of Directors
and the provisions of Section 12 of Article III, with respect to action taken
by a committee of the Board of Directors without a meeting shall apply to
participation in meetings of an action taken by any such committee.
Section 3. Emergency Management Committee. In the event that a
quorum of the Executive Committee or of the Board of Directors cannot readily
be convened as a result of emergency conditions following a catastrophe or
disaster, then all the powers and duties vested in the Board of Directors
shall vest automatically in an Emergency management Committee which shall
consist of all readily available members of the Board of Directors and which
Committee shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the Corporation.
Two members shall constitute a quorum. Other provisions of these By-Laws
notwithstanding, the Emergency Management Committee shall call a meeting of
the Board of Directors as soon as circumstances permit, for the purpose of
filing vacancies on the Board of Directors and its committees and to take such
other action as may be appropriate, and if the Emergency Management Committee
determines that less than a majority of the members of the Board of Directors
are available for service, the Emergency Management Committee shall, as soon as
practicable, issue a call for a special meeting of stockholders for the
election of directors. The powers of the Emergency Management Committee shall
terminate upon the convening of the meeting of the Board of Directors above
prescribed at which a majority of the members thereof shall be present, or
upon the convening of the above prescribed meeting of stockholders, whichever
first shall occur.
Section 4. Members' Compensation. Members of any committee may
receive such reasonable compensation for their services of such, whether in
the form of salary or a fixed fee for attendance at meetings, with expenses,
if any, as the Board of Directors may from time to time determine. Nothing
herein contained shall be construed to preclude any member of a committee from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE VI
THE OFFICERS
Section 1. Officers - Qualifications. The elected officers of
the Corporation shall be a Chairman of the Board, a President, a Secretary and
a Treasurer. The elected offices may also include one or more Vice Chairmen
of the Board, one or more Executive Vice Presidents, one or more Senior Vice
Presidents, one or more First Vice Presidents and one or more Vice Presidents.
The elected offices shall be elected by the Board of Directors. The Chairman
of the Board, the President, each Vice Chairman of the Board, and the Chairman
of the Executive Committee shall be selected from the directors. One or more
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
other officers and agents may be appointed by the Board of Directors or may be
appointed pursuant to Section 7 of this Article VI. Elected officers shall,
if required by any securities exchange, board of trade, commodities exchange,
clearing corporation or association, or similar institution on which the
Corporation has membership privileges, each be an employee of the Corporation
and a record and beneficial owner of shares of capital stock of the
Corporation. If so required by the foregoing sentence, whenever any officer
of the Corporation ceases to be an employee of the Corporation or, if he is a
record and beneficial owner of capital stock of the Corporation, ceases to be
such an owner, he shall thereupon also cease to be an officer of the
Corporation without any further action on his part or on the part of the Board
of Directors, the Chairman of the Board or the President.
Section 2. Term of Office; Vacancies. So far as is
practicable, all elected officers shall be elected at the organization meeting
of the Board of Directors in each year, and except as otherwise provided in
Sections 1, 3, and 4, and subject to the provisions of Section 7, of this
Article VI, shall hold office until the organization meeting of the Board of
Directors in the next subsequent year and until their respective successors
are elected and qualify or until their earlier resignation or removal. All
appointed officers shall hold office during the pleasure of the Board and
Directors and the President. If any vacancy shall occur in any office, the
Board of Directors may elect or appoint a successor to fill such vacancy for
the remainder of the term.
Section 3. Removal of Elected Officers. Any elected officer
may be removed at any time, either for or without cause, by affirmative vote
of a majority of the whole Board of Directors, at any regular meeting or at
any special meeting called for the purpose.
Section 4. Registrations. Any officer may resign at any time,
upon written notice of resignation to the Corporation. Any resignation shall
be effective immediately unless a date certain is specified for it to take
effect, in which event it shall be effective upon such date, and acceptance of
any resignation shall not be necessary to make it effective, irrespective of
whether the resignation is tendered subject to such acceptance.
Section 5. Officers Holding More Than One Office. Any officer
may hold two or more offices the duties of which can be consistently performed
by the same person.
Section 6. The Chairman of the Board. As provided in Section
1 of Article IV, the Chairman of the Board shall be an ex officio member of
the Executive Committee; as provided in Section 5 of Article II, he shall act
as chairman at all meetings of the stockholders at which he is present and as
provided in Section 9 of Article III, he shall preside at all meetings of the
Board of Directors at which he is present. In the absence of the Chairman of
the Board, his duties shall be performed and his authority may be exercised by
the President, and, in the absence of the Chairman of the Board and the
President, such duties shall be performed and such authority may be exercised
by such officer as may have been designated by the most senior member of the
Executive Committee who has made any such designation, with the right reserved
to the Board of Directors to make the designation or supersede any designation
so made.
Section 7. The President. The President shall be the chief
executive and administrative officer of the Corporation. He shall direct,
coordinate and control the Corporation's business and activities and its
operating expenses and capital expenditures within the limits of the budgets
approved by the Executive Committee, and shall have general authority to
exercise all the powers necessary for the chief executive officer of the
Corporation, all in accordance with basic policies established by the
Executive Committee and subject to the control of the Board of Directors. He
shall have authority to maintain the plan of organization of the Corporation
formulated by the Executive Committee and shall establish operating and
administrative plans and policies and direct and coordinate the Corporation's
organizational components. He shall have general authority to execute bonds,
deeds and contracts in the name and on behalf of the Corporation and
responsibility for the employment or appointment of such employees, agents and
officers (except officers to be elected by the Board of Directors pursuant to
Section 1 of this Article VI) as may be required for the conduct of the
business and the attainment of the objectives of the Corporation, and authority
to fix compensation as provided in Section 19 of this Article VI. He shall
have authority to suspend or to remove any employee, agent or appointed
officer to the Corporation and to suspend for cause any elected officer of the
Corporation and, in the case of the suspension for cause of any such elected
officer, to recommend to the Board of Directors what further action should be
taken. As provided in Section 1 of Article IV, he shall be ex officio member
of the Executive Committee. As provided in Section 6 of this Article IV, in
the absence of the President, his duties shall be performed and his authority
may be exercised by the Chairman of the Board. In the absence of the
President and the Chairman of the Board, the duties of the President shall be
performed and his authority may be exercised by such officer as may have been
designated by the most senior member of the Executive Committee who has made
any such designation or supersede any designation so made.
Section 8. The Vice Chairmen of the Board. The several Vice
Chairmen of the Board, if any, shall perform such duties and may exercise such
authority as may from time to time be conferred upon them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President.
Section 9. The Chairman of the Executive Committee. The
Chairman of the Executive Committee, if any, shall as provided in Section 4 of
Article IV, preside at all meetings of the Executive Committee at which he is
present. As provided in Section 1 of Article IV, he shall be an ex officio
member of the Executive Committee. He shall perform such duties and may
exercise such authority as from time to time may be conferred upon him by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President.
Section 10. The Executive Vice Presidents. The several
Executive Vice Presidents, if any, shall perform such duties and may exercise
such authority as may from time to time be conferred upon them by the Board of
Directors, the Executive Committee or the President.
Section 11. The Senior Vice Presidents. The several Senior Vice
Presidents, if any, shall perform such duties and may exercise such authority
as may from time to time be conferred upon them by the Board of Directors, the
Executive Committee, the President or any Executive Vice President.
Section 12. The First Vice Presidents. The several First Vice
Presidents, if any, shall perform such duties and may exercise such authority
as may from time to time be conferred upon them by the Board of Directors, the
Executive Committee, the President, any Executive Vice President or any Senior
Vice President.
Section 13. The Vice Presidents. The several Vice Presidents,
if any, shall perform such duties any may exercise such authority as may from
time to time be conferred upon them by the Board of Directors, the Executive
Committee, the President, any Executive Vice President, any Senior Vice
President or any First Vice President.
Section 14. The Secretary. The Secretary shall attend to the
giving of notice of all meetings of stockholders and of the Board of Directors
and committees thereof, and, as provided in Section 5 of Article II, Section 9
of Article III, and Section 4 of Article IV, shall keep minutes of all
proceedings at meetings of the stockholders, of the Board of Directors and of
the Executive Committee at which he is present, as well as of all proceedings
at all meetings of such other committees of the Board of Directors as shall
designate him so to serve. As provided in Section 2 of Article VIII, he shall
have charge of the corporate seal and shall have authority to attest any and
all instruments or writings to which the same may be affixed. He shall keep
and account for all books, documents, papers and records of the Corporation,
except those for which some other officer or agent is properly accountable. He
shall generally perform all the duties usually appertaining to the office of
secretary of a corporation. In the absence of the Secretary, such person as
shall be designated by the President shall perform his duties.
Section 15. The Treasurer. The Treasurer shall have the care
and custody of all the funds of the Corporation and shall deposit the same in
such banks or other depositories as the Board of Directors or any officer or
officers, or any officer and agent jointly, thereunto duly authorized by the
Board of Directors, shall, from time to time, direct or approve. He shall
keep a full and accurate account of all moneys received and paid on account of
the Corporation, and shall render a statement of his accounts whenever the
Board of Directors shall require. Except as otherwise provided by the Board
of Directors or in the Corporation's plan of organization, he shall perform
all other necessary acts and duties in connection with the administration of
the financial affairs of the Corporation and shall generally perform all the
duties usually appertaining to the office of the treasurer of a corporation.
Whenever required by the Board of Directors he shall give bonds for the
faithful discharge of his duties in such sums and with such sureties as the
Board of Directors shall approve. In the absence of the Treasurer, such
person as shall be designated by the President shall perform his duties.
Section 16. Additional Duties and Authority. In addition to
the foregoing specifically enumerated duties and authority, the several
officers and employees of the Corporation shall perform such other duties and
may exercise such further authority as the Board of Directors or the Executive
Committee may from time to time determine, or as may be assigned to them by
any superior officer.
Section 17. Compensation. Except as fixed or controlled by the
Compensation Committee or otherwise, compensation of all officers and
employees shall be fixed by the President, or by other officers of the
Corporation exercising authority granted to them under the plan of
organization of the Corporation.
ARTICLE VII
STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates. The capital stock of the
Corporation shall be represented by certificates signed by, or in the name of
the Corporation by, the Chairman of the Board, the President, a Vice Chairman
of the Board or a Vice President and by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer, and sealed with the
seal of the Corporation. If such stock certificate is countersigned by a
Transfer Agent other than the Corporation or its employee or by a Registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile, engraved or printed. Such seal may be
facsimile, engraved or printed. In case any such officer, Transfer Agent or
Registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, Transfer Agent or Registrar
before such certificate is issued by the Corporation, it may nevertheless be
issued by the Corporation with the same effect as if such officer, Transfer
Agent or Registrar had not ceased to be such at the date of its issue. The
certificates representing the capital stock of the Corporation shall be in
such form as shall be approved by the Board of Directors and certificates
representing shares of the Common Stock of the Corporation shall bear the
following legend on the reverse:
"If the holder of shares of Common Stock represented by this
certificate is required to be approved by the New York Stock Exchange or any
other securities exchange, board of trade, commodities exchange, clearing
corporation or association, or similar institution on which the Corporation
has membership privileges (collectively referred to as the "Exchange"), and
such holder fails or ceases to be so approved, or if the holder is a parent of
the Corporation and fails or ceases to satisfy the requirements of the
Exchange with respect to a parent, the Corporation is authorized at its option
to issue shares of Preferred Stock in exchange for the shares of Common Stock
represented hereby, the Preferred Stock to have a voluntary liquidation
preference equal to the book value of the shares of Common Stock represented
hereby, as determined by the Board of Directors."
Section 2. Transfers of Stock. Transfers of stock shall be
made on the books of the Corporation by the person named in the certificate,
or by an attorney lawfully constituted in writing, and upon surrender and
cancellation of a certificate or certificates for a like number of shares of
the same class or series of stock, duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and with such
proof of the authenticity of the signatures as the Corporation or its agents
may reasonably require and with all required stock transfer tax stamps affixed
thereto and cancelled or accompanied by sufficient funds to pay such taxes.
Section 3. Lost Certificates. In case any certificate of
stock shall be lost, stolen or destroyed, the Board of Directors, in its
discretion, or any officer or officers thereunto duly authorized by the Board
of Directors, may authorize the issue of a substitute certificate in place of
the certificate so lost, stolen or destroyed; provided, however, that in each
such case, the applicant for a substitute certificate shall furnish evidence
to the Corporation, which it determines in its discretion is satisfactory, of
the loss, theft or destruction of such certificate and of the ownership
thereof, and also such security or indemnity as may be required by it.
Section 4. Determination of Stockholders of Record for Certain
Purposes. In order to determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
capital stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, not more than sixty (60) days
prior to the date of payment of such dividend or other distribution or
allotment of such rights or the date when any such rights in respect of any
change, conversion or exchange of stock may be exercised, and in such case
only stockholders of record on the date so fixed shall be entitled to receive
payment of such dividend or other distribution or to receive such allotment of
rights, or to exercise such rights, notwithstanding any transfer of any stock
on the books of the Corporation after any such record date fixed as aforesaid.
ARTICLE VIII
CORPORATE SEAL
Section 1. Seal. The seal of the Corporation shall be in the
form of a circle and shall bear the name of the Corporation and in the center
of the circle the words "Corporate Seal, Delaware" and the figures "1958."
Section 2. Affixing and Attesting. The seal of the
Corporation shall be in the custody of the Secretary, who shall have power to
affix it to the proper corporate instruments and documents, and who shall
attest it. In his absence, it may be affixed and attested by an Assistant
Secretary, or by the Treasurer or an Assistant Treasurer or by any other
person or persons as may be designated by the Board of Directors.
ARTICLE IX
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Corporation
shall end on the last Friday of December in each year and the succeeding
fiscal year shall begin on the day next succeeding the last day of the
preceding fiscal year.
Section 2. Signatures on Negotiable Instruments. All bills,
notes, checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents and in such manner as, from time to
time, may be prescribed by resolution (whether general or special) of the
Board of Directors, or may be prescribed by any officer or officers, or any
officer and agent jointly, thereunto duly authorized by the Board of Directors.
Section 3. References to Article and Section Numbers and to
the By-Laws and the Certificate of Incorporation. Whenever in the By-Laws
reference is made to an Article or Section number, such reference is to the
number of an Article or Section of the By-Laws. When reference is made to the
By-Laws, such reference is to these By-Laws of the Corporation, as amended,
and whenever reference is made to the Certificate of Incorporation, such
reference is to the Certificate of Incorporation of the Corporation, as
amended.
ARTICLE X
AMENDMENTS
The By-Laws may be altered, amended or repealed at any Annual
Meeting of Stockholders, or at any special meeting of holders of shares of
stock entitled to vote thereon, provided that in the case of a special meeting
notice of such proposed alteration, amendment or repeal by included in the
notice of meeting, by a vote of the holders of a majority of the shares of
stock present in person or by proxy at the meeting and entitled to vote
thereon, or (except as otherwise expressly provided in any By-Law adopted by
the stockholders) by the Board of Directors at any valid meeting by
affirmative vote of a majority of the whole Board of Directors.
_______________
The undersigned, duly qualified and acting Secretary of Merrill
Lynch, Pierce, Fenner & Smith Incorporated, a Delaware corporation, hereby
certifies the foregoing to be a true and complete copy of the By-Laws of
the said Merrill Lynch, Pierce, Fenner & Smith Incorporated in effect on
this date.
______________________________
Secretary
Dated:
EXHIBIT 1.5
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:30 A.M. 06/01/1994
944097598 - 546629
CERTIFICATE OF AMENDMENT
OF RESTATED
CERTIFICATE OF INCORPORATION
OF
SMITH BARNEY SHEARSON INC.
********************
SMITH BARNEY SHEARSON INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware.
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a
meeting duly held, adopted a resolution advising that the Restated Certificate
of Incorporation of said corporation be amended so that Article First thereof
shall read in its entirety as follows:
"Article First: The name of the corporation is Smith Barney
Inc. (the "Corporation")."
SECOND: That in lieu of a meeting and vote, the sole
stockholder of said corporation has given its written consent to said
amendment in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Sections 242 and 228 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Smith Barney Shearson Inc. has caused this
certificate to be signed by Robert Druskin, its Vice Chairman and Chief
Administrative Officer, and attested by Marilyn Jason, its Senior Vice
President and Assistant Secretary, this 23 day of May, 1994.
SMITH BARNEY SHEARSON INC.
By: /s/ Robert Druskin
-------------------------
Robert Druskin
Vice Chairman and Chief
Administrative Officer
ATTEST:
/s/ Marilyn Jason
Marilyn Jason
Senior Vice President and
Assistant Secretary
RESTATED
CERTIFICATE OF INCORPORATION
OF
SMITH BARNEY, HARRIS UPHAM & CO. INCORPORATED
Smith Barney, Harris Upham & Co. Incorporated, a corporation
duly organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation") does hereby certify as follows:
FIRST: That the Corporation was incorporated under the
name Smith, Barney & Co. Incorporated and the original Certificate of
Incorporation was filed in the office of the Secretary of State of Delaware on
January 7, 1960.
SECOND: That the Restated Certificate of Incorporation of
the Corporation is hereby amended and restated to read in its entirety as
follows:
ARTICLE ONE
Name.
The name of the Corporation is Smith Barney Shearson Inc.
ARTICLE TWO
Registered Office.
The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 120 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE THREE
Corporate Purpose.
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
Capital Stock.
Section 1. The total number of shares of Common Stock
which the Corporation shall have authority to issue is 1,000 shares of Common
Stock having a par value of ten thousand dollars ($10,000) per share. The
total number of shares of Preferred Stock which the Corporation shall have the
authority to issue is 100 shares of Preferred Stock having a par value of ten
thousand dollars ($10,000) per share.
Section 2. (a) The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of this Article
FOUR, to provide for the issuance of the shares of Preferred Stock in series,
and by filing a certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions thereof. The authority of the Board of Directors with respect to
each series shall include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series and
the distinctive designation of that series;
(ii) The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from which
date or dates, and the relative rights of priority, if any, of
payment of dividends on shares of that series;
(iii) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
(iv) Whether that series shall have conversion or
exchange privileges, and, if so, the terms and conditions of
such conversion or exchange, including provision for adjustment
of the conversion or exchange rate in such events as the Board
of Directors shall determine;
(v) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed, the date
or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount
may vary under different conditions and at different redemption
dates;
(vi) Whether that series shall have a sinking fund for
the redemption or purchase of shares of that series, and, if
so, the terms and amount of such sinking fund;
(vii) The rights, if any, of the shares of that series
to the benefit of conditions and restrictions upon the creation
of indebtedness of the Corporation or any subsidiary, upon the
issue of any additional stock (including additional shares of
such series or any other series) and upon the payment of
dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Corporation or
any subsidiary of, any outstanding stock of the Corporation;
(viii) The rights of the shares of that series in the
event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and the relative rights of
priority, if any, of payment of shares of that series
("Liquidation Rights");
(ix) Any restrictions on transfers of shares of that
series; and
(x) Any other relative, participating, optional or other
special rights, qualifications, limitations or restrictions of
that series.
(b) Shares of any series of Preferred Stock which have been
redeemed (whether through the operation of a sinking fund or otherwise) or
which, if convertible or exchangeable, have been converted into or exchanged,
shall have the status of authorized and unissued shares of Preferred Stock of
the same series and may be reissued as a part of the series of which they were
originally a part or may be reclassified and reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to
the conditions and the restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of Preferred Stock.
ARTICLE FIVE
Restriction of Dividends.
No dividend shall be declared or paid which shall impair the
capital of the Corporation nor shall any distribution of assets be made to any
holder of the stock of the Corporation unless the value of the assets of the
Corporation remaining after such payment or distribution is at least equal to
the aggregate of its debts, liabilities and capital. A director shall be
fully protected in relying in good faith upon the books of account of the
Corporation or statements prepared by any of its officials as to the value and
amount of the assets, liabilities and/or net profits of the Corporation, or
any other facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid.
ARTICLE SIX
Corporation's Right to Purchase a
Holder's Capital Stock.
Section 1. Issuance of Shares. Shares of the stock of
the Corporation shall be issued only in the name of the beneficial owner
thereof, and no transfer of such shares shall be affected except on the stock
books of the Corporation.
Section 2. Corporation's Right to Purchase Shares.
(a) The Corporation shall have the right to purchase any or
all of the holder's shares of Common Stock:
(i) When a holder gives the Corporation written notice
of the holder's intention to sell or otherwise dispose of any
of his shares, naming the proposed buyer or transferee;
(ii) When a holder's shares are involuntarily
transferred by operation of law or otherwise;
(iii) When any holder required to be approved by the
Board of Directors of the New York Stock Exchange, Inc. as a
"member", "allied member" or "approved person" fails or ceases
to be so approved (the terms "member", "allied member" and
"approved person" shall for the purpose of this Section have
the meaning given such terms in the Constitution and the
General Rules of the New York Stock Exchange, Inc.) provided
that, in such event, the Company shall also have the right to
redeem or convert to a fixed income security all or any part of
such holder's shares on terms determined by the Board of
Directors; and
(iv) When the Board of Directors, in good faith
determines that it is in the best interests of the Corporation.
(b) The price to be paid for a holder's shares purchased
pursuant to Section 2(a) of this Article Six shall be equal to:
(i) the net worth of the Corporation less the aggregate
amount, if any, that would be required to be paid to holders of
any shares of Preferred Stock outstanding in the event that the
Company were dissolved on the date of such purchase; divided by
(ii) the number of shares of Common Stock outstanding.
(c) The Corporation shall have such rights to purchase a
holder's shares of Preferred Stock of any series as are set forth in the
certificate filed pursuant to Section 2(a) of Article Four providing for the
issuance of such series.
ARTICLE SEVEN
Election of Directors.
Election of directors need not be by written ballot except as
otherwise provided in the by-laws.
ARTICLE EIGHT
Indemnification of Directors,
Officers and Employees.
The Corporation shall indemnify to the full extent authorized
by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer or employee of the Corporation or any predecessor of the Corporation
or serves or served any other enterprise as a director, officer or employee at
the request of the Corporation or any predecessor of the Corporation.
ARTICLE NINE
Limitation of Liability of Directors.
To the fullest extent permitted by the General Corporation Law
of the State of Delaware, as it exists or may hereafter be amended, a director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
ARTICLE TEN
Amendment of By-Laws
The board of directors shall have the power to adopt, amend or
repeal, from time to time, the by-laws of the Corporation. THIRD, that such
amendment and restatement have been duly proposed and declared advisable by
the Board of Directors of the Corporation and duly adopted by consent in
writing by the sole stockholder of the Corporation all in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Smith Barney, Harris Upham & Co.
Incorporated has caused this Restated Certificate of Incorporation to be
executed by its Vice Chairman and its Assistant Secretary and its corporate
seal to be affixed hereto this 30th day of July, 1993.
SMITH BARNEY, HARRIS UPHAM & CO. INCORPORATED
By: /s/ Robert Druskin
Name: Robert Druskin
Title: Vice Chairman
[SEAL]
Attest:
/s/ Joanne Pinou
Joanne Pinou
Assistant Secretary
EXHIBIT 1.6
BY-LAWS
of
SMITH BARNEY INC.
(Formerly Smith Barney Shearson Inc.)
(a Delaware corporation)
________________________
As amended through April 20, 1995
Smith Barney Inc.
(Formerly Smith Barney Shearson Inc.)
__________
BY-LAWS
__________
ARTICLE I.
OFFICES.
SECTION 1. The registered office of the corporation in
the State of Delaware shall be at Corporation Trust Center, 1209 Orange Street
in the City of Wilmington, County of New Castle. The principal place of
business of the corporation shall be at No. 1345 Avenue of the Americas, in
the Borough of Manhattan, City and State of New York, or at such other place
as the board of directors may hereafter determine.
SECTION 2. The corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS.
SECTION 1. All meetings of the stockholders shall be
held at the principal place of business of the corporation or at such other
place, within or without the State of Delaware, as the board of directors shall
determine.
SECTION 2. An annual meeting of stockholders shall be
held in each year at such time and on such date as shall be determined by the
Board of Directors, at which the stockholders shall elect a board of directors
and transact such other business as may properly be brought before the
meeting. Special meetings of stockholders may be held at such times as the
board of directors shall determine.
SECTION 3. Written notice of the annual meeting or any
special meeting of stockholders shall, unless otherwise prescribed by statute,
be given to each stockholder entitled to vote thereat at least ten days before
the date of the meeting.
SECTION 4. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every election of directors, a complete list of the stockholders entitled to
vote at said election, arranged in alphabetical order with the residence of
and the number of voting shares held by each. Such list shall be open, at the
place where said election is to be held, for ten days to the examination of
any stockholder, and shall be produced and kept at the time and place of
election during the whole time thereof, and subject to the inspection of any
stockholder who may be present.
SECTION 5. Special meetings of the stockholders, for any
purpose or purposes, may be called by the board of directors, the chairman of
the board of directors or the president and shall be called by the president or
secretary at the request in writing of a majority of the board of directors,
or at the request in writing of stockholders owning a majority in amount of
the entire capital stock of the corporation issued and outstanding and entitled
to vote. Such request shall state the purpose or purposes of the proposed
meeting.
SECTION 6. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the meeting
as originally notified.
At each meeting of stockholders for the election of directors
the voting for directors shall not be by ballot unless the holders of record
of a majority of the shares of stock present in person or represented by proxy
at such meeting and entitled to vote thereat shall so determine.
SECTION 7. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power present or
represented by proxy shall, unless otherwise prescribed by statute or by the
certificate of incorporation, decide any question brought before such meeting,
except that directors shall be elected by a plurality of the votes cast.
SECTION 8. Each stockholder of shares of stock shall at
every meeting of the stockholders be entitled to the vote, if any, provided
for each such share of stock in the Restated Certificate of Incorporation of
the corporation, in person or by proxy, for each share of stock held by him
which has voting power upon the matter in question, but no proxy shall be
voted after three years from its date unless the proxy provides for a longer
period, and, except where the transfer books of the corporation have been
closed or a date has been fixed as a record date for the determination of its
stockholders entitled to vote, as hereinafter provided, no share of stock
shall be voted at any election for directors which has been transferred on the
books of the corporation within twenty days next preceding such election of
directors.
SECTION 9. The board of directors may fix in advance a
date, not less than ten nor more than 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 stock shall go into effect, or a date in connection with obtaining
the consent of stockholders for any purpose, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, 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 such change, conversion or exchange of stock, or to
give such consent, and in such case such stockholders of record on the date so
fixed shall be entitled to such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
SECTION 10. Any action required by law to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of stockholders of the
corporation, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have
not consented in writing.
ARTICLE III.
DIRECTORS.
SECTION 1. The number of directors which shall
constitute the whole board shall be determined from time to time by the board
of directors or the stockholders. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until the annual meeting
of stockholders next succeeding his election and until his successor is duly
elected and shall qualify.
SECTION 2. Vacancies, and newly created directorships
resulting from any increase in the authorized number of directors, may be
filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
meeting of stockholders and until their successors are duly elected and shall
qualify.
SECTION 3. The business of the corporation shall be
managed under the direction of its board of directors which may exercise all
such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
SECTION 4. The board of directors may hold meetings,
both regular and special, either within or without the State of Delaware.
SECTION 5. The first meeting of each newly elected board
of directors shall be held as soon as practicable after the annual meeting of
the stockholders, and no notice of such first meeting shall be required.
SECTION 6. Regular meetings of the board of directors
shall be held quarterly or more often as shall be determined by the board, at
such time and at such place as shall from time to time be determined by the
board, and if such regular meeting is held at the time and place so
determined, no notice thereof need be given. Special meetings of the board of
directors may be called by the chairman of the board of directors, the
president or the secretary and shall be called by the secretary on the written
request of any three directors.
SECTION 7. Notice of each special meeting of the board
of directors shall be given to each director at least 48 hours before the
meeting.
SECTION 8. At all meetings of the board of directors,
one-half of the authorized number of directors shall constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting
of the board of directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 9. Any action required or permitted to be taken
at any meeting of the board of directors may be taken without a meeting if all
members of the board consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board.
SECTION 10. The directors shall be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be
paid a fixed sum for attendance at each meeting of the board of directors or a
stated salary as director, or both, as from time to time fixed by the board
of directors. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
ARTICLE IV.
COMMITTEES.
SECTION 1. The board of directors may, by resolution
passed by a majority of the whole board, appoint an executive committee
consisting of such number of members of the board of directors as shall be
determined by the board. The Chairman and the President shall each be a
member of the executive committee. The executive committee shall have and may
exercise all of the powers and authority of the board of directors in
management of the business and affairs of the corporation, including without
limiting the foregoing, the power and authority to authorize the issuance or
sale of any authorized but unissued stock, or any treasure stock, of the
corporation, to declare a dividend on any class of stock of the corporation
and to fill vacancies and newly created directorships or committee memberships
on the board of directors or any committee thereof, and may authorize the seal
of the corporation to be affixed to all papers which may require it; provided
that the executive committee shall not have any power or authority in reference
to amending the certificate of incorporation, adopting an agreement of merger
or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of dissolution or amending the by-laws of the corporation. All
acts done and powers conferred by the executive committee shall be deemed to
be, and may be certified as being, done or conferred under the authority of
the board of directors.
SECTION 2. The board of directors may, by resolution
passed by a majority of the whole board, appoint such other committees, which
may include as members directors only or directors or non-directors as the
board of directors may consider desirable, and such committees shall have such
powers and duties as the board of directors may properly determine. Each such
committee shall report to the board of directors, and the powers and duties of
any such committee whose members include non-directors shall be limited to
making recommendations to the board of directors.
SECTION 3. The board of directors may, by vote of a
majority of the whole board, at any time remove any member of any committee or
change the number of persons serving on any committee. Subject to such
removal or change, members of a committee shall hold office until the first
meeting of the board of directors following the annual meeting of stockholders
next succeeding their appointment, and until their successors are appointed.
SECTION 4. Meetings of a committee shall be held at such
place, within or without the State of Delaware, as may from time to time be
determined by the board of directors or the committee, and no notice of such
regular meetings shall be required. Special meetings of any committee may be
called by the chairman of such committee or by the chairman of the board, the
president or the secretary of the corporation, and shall be called by the
secretary on the written request of any three members of such committee.
Notice of a special meeting of any committee shall be given to each member
thereof at least 24 hours before the time of meeting. One-half of the members
of any committee shall constitute a quorum for the transaction of business by
such committee. The act of a majority of the members present at any meeting
at which there is a quorum shall be the act of such committee except on
matters with respect to which a larger vote is required under applicable law
or under some other provision of the by-laws.
SECTION 5. Any action required or permitted to be taken
at any meeting of any committee may be taken without a meeting if all members
of such committee consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of such committee.
SECTION 6. Members of committees appointed by the board
of directors may be compensated for membership on such committees, and for
attendance at meetings thereof, in the same manner as members of the board of
directors may be so compensated pursuant to the provisions of Section 10 of
Article III hereof, in such amounts as from time to time may be fixed by the
board of directors.
ARTICLE V.
NOTICES.
SECTION 1. Notices to directors, committee members and
stockholders shall be in writing and delivered personally, mailed, or
transmitted by facsimile or other electronic transmission to the directors,
committee members or stockholders at their respective addresses appearing in
the records of the corporation. Notice by mail or electronic transmission
shall be deemed to be given at the time when the notice shall be mailed or the
electronic transmission released.
SECTION 2. Whenever any notice is required to be given
to a person under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, a waiver thereof in writing, signed by such
person, whether before or after the time such notice is required to be given,
shall be deemed equivalent thereto. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of directors, stockholders
or a committee need be specified in any waiver of notice relating to such
meeting.
ARTICLE VI.
OFFICERS.
SECTION 1. The officers of the corporation shall be
elected by the board of directors or appointed in such manner as the board of
directors shall specify by resolution and may include a chairman of the board
of directors, a president, one or more vice presidents, a secretary and a
treasurer (but in any event shall include such officers as may be duly
authorized to exercise the duties ordinarily exercised under the Delaware
General Corporation Law by any of the foregoing officers). Any vice president
may be designated as a senior executive vice president, executive vice
president or senior vice president by the board of directors or in the manner
specified in such resolution. The board of directors may also elect or
provide for the appointment of such other officers, assistant officers, agents
and employees as it may deem advisable. Two or more offices may be held by
the same person. Officers elected by or appointed pursuant to a resolution of
the board of directors shall be officers of the corporation only if they are
so identified at the time of their election or appointment.
SECTION 2. The board of directors at its first meeting
after each annual meeting of stockholders shall elect the officers. None of
the officers other than the chairman of the board of directors need be a
member of the board. The board of directors may, at any meeting thereof, fill
any office or appoint any assistant officer.
SECTION 3. The officers and assistant officers of the
corporation shall hold office until their successors are chosen and qualify.
Any officer or assistant officer elected by or appointed in the manner
specified in a resolution of the board of directors may be removed at any time
by the board of directors or in the manner specified in such resolution. Any
vacancy occurring in any office of the corporation by death, resignation,
removal or otherwise may be filled by the board of directors at any meeting
thereof or in the manner specified in a resolution of the board of directors.
SECTION 4. The board of directors shall elect either the
chairman of the board of directors or the president as chief executive officer
of the corporation.
SECTION 5. The chairman of the board of directors or, in
the absence or inability to act of the chairman of the board of directors, the
president or such other board member as shall be determined by a vote of the
directors present, shall preside at meetings of the stockholders, the board of
directors and the executive committee.
SECTION 6. The officers of the corporation shall have
and perform the duties and powers which normally appertain to their respective
offices, and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
The board of directors may require any officer, agent or
employee of the corporation to give bond for the faithful discharge of his
duties, in such sum and of such character as the board of directors may from
time to time prescribe.
SECTION 7. The chairman of the board of directors, or,
in the absence or inability to act of the chairman of the board of directors,
the president or any vice chairman, or such other officer as may be designated
by the board of directors, shall have the power, subject to any specific
direction by the board of directors of the corporation, to vote or give a
proxy for the voting of all shares of stock of any corporation owned by the
corporation at any meeting of the stockholders of any such corporation.
ARTICLE VII.
CERTIFICATES OF STOCK.
SECTION 1. The interest of each stockholder in the
corporation shall be evidenced by a certificate or certificates for shares of
stock of the corporation, in such form as the board of directors may from time
to time prescribe. The certificates for shares of stock of the corporation
shall be signed by the chairman of the board of directors, a vice chairman,
the president or a vice president and by the secretary or the treasurer or an
assistant secretary or an assistant treasurer. The stock certificates shall
bear the following legend:
"The shares evidenced by this certificate are subject (a) to
the restrictions upon transfer and the options to purchase
contained in the Certificate of Incorporation of the
corporation and (b) to the restrictions upon transfer contained
in certain agreements made by the owner of these shares with,
or imposed on such owner by, various stock exchanges. Such
owner, by accepting this certificate, agrees that he is bound
by such provisions and to all other provisions of the
Certificate of Incorporation.
Without limiting the foregoing, the corporation shall have the
right at any time to redeem or convert to a fixed income
security all or any part of the shares of stock of the
corporation represented by this certificate where owned by any
person required to be approved by the Board of Directors of the
New York Stock Exchange as a member, allied member or approved
person who fails or ceases to be so approved as may be
necessary to reduce such party's ownership of voting stock in
the corporation below that level which enables such party to
exercise controlling influence over the management or policies
of the corporation. The shares of stock represented by this
certificate are subject to the restrictions set forth in SEC
Rule 15c3-1(e)(2)."
SECTION 2. Subject to the restrictions referred to in
Section 1 of this Article VII, the shares of stock of the corporation shall be
transferable on the books of the corporation by the holders thereof in person
or by duly authorized attorney, upon surrender for cancellation of
certificates for a like number of shares of the same class of stock, with duly
executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signatures as the
corporation or its agents may reasonably require.
SECTION 3. No certificate for shares of stock of the
corporation shall be issued in place of any certificate alleged to have been
lost, stolen or destroyed, except upon production of such evidence of the
loss, theft or destruction and upon indemnification of the corporation and its
agents to such extent and in such manner as the board of directors may from
time to time prescribe.
ARTICLE VIII.
GENERAL.
SECTION 1. All checks or demands for money and notes or
contracts of the corporation, and all instruments effecting or evidencing
loans or guarantees by the corporation or transfers of securities by the
corporation, shall be signed by such officer or officers or such other person
or persons as the board of directors may from time to time designate. Any
such signatures may be facsimiles, to the extent authorized from time to time
by the board of directors.
SECTION 2. The fiscal year of the corporation shall be
the calendar year.
SECTION 3. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the
words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE IX.
AMENDMENTS.
These by-laws may be altered or repealed, and new by-laws made,
by the board of directors, but the stockholders may make additional by-laws
and may alter or repeal any by-law whether adopted by them or otherwise.
EXHIBIT 1.7
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
PAINEWEBBER INCORPORATED
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
PaineWebber Incorporated, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(hereinafter sometimes called the "Corporation"), DOES HEREBY CERTIFY as
follows:
1. Pursuant to action by unanimous written consent of the
Board of Directors of the Corporation, resolutions were duly adopted setting
forth proposed amendments to the Restated Certificate of Incorporation of the
Corporation, declaring said amendments to be advisable, and directing that the
amendments be submitted to the stockholder of the Corporation for
consideration thereof. The resolutions setting forth the proposed amendments
are as follows:
RESOLVED, that the Restated Certificate of
Incorporation of PaineWebber Incorporated be, and it
hereby is, amended by deleting current Article X and
re-designing Articles XI and XII as Articles X and XI.
2. That, thereafter, the sole stockholder of the Corporation
in lieu of a meeting and vote on such amendment, gave a written consent to the
amendment pursuant to Section 228 of the General Corporation Law of the State
of Delaware.
3. That said amendments were duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, PaineWebber Incorporated has caused this
Certificate to be signed by Dorothy F. Haughey, its Vice President and
Secretary and attested by Carleen Giacalone, its Assistant Secretary, this
10th day of June, 1991.
PAINEWEBBER INCORPORATED
Dorothy F. Haughey,
Vice President and Secretary
Attest:
Carleen Giacalone,
Assistant Secretary
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
This instrument was acknowledged before me this 10th day of
June, 1991 by Dorothy F. Haughey and Carleen Giacolone, as Vice President and
Secretary and Assistant Secretary, respectively, of PaineWebber Incorporated, a
Delaware corporation, being authorized so to do on its behalf.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
[CONFORMED COPY]
RESTATED CERTIFICATE OF INCORPORATION
OF
PAINEWEBBER INCORPORATED
As amended July 2, 1984
TABLE OF CONTENTS
Page
Number
ARTICLE I
NAME 1
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT 1
ARTICLE III
CORPORATE PURPOSES AND POWERS 1
ARTICLE IV
CAPITAL STOCK 2
SECTION 1. Shares, Classes and Series Authorized.............. 2
SECTION 2. Designations, Powers, Preferences, Rights,
Qualifications, Limitations and Restrictions of
Capital Stock...................................... 2
Part I. Series Preferred Stock............................. 2
Part II. Common Stock....................................... 8
ARTICLE V
RESTRICTION ON DIVIDENDS 8
ARTICLE VI
RIGHTS OF CORPORATION TO PURCHASE OR CONVERT
SHARES OF VOTING STOCK
9
SECTION 1. When Rights and Options Arise...................... 9
SECTION 2. Determination of Net Book Value.................... 10
SECTION 3. Method of Exercising Corporation's Right and
Option to Purchase or Convert Shares............... 12
SECTION 4. Right of Holder to Dispose of Shares............... 13
SECTION 5. Waiver by Corporation.............................. 14
ARTICLE VII
BOARD OF DIRECTORS 14
SECTION 1. Powers of the Board of Directors................... 14
SECTION 2. Reliance on Books.................................. 16
ARTICLE VIII
MEETINGS OF STOCKHOLDERS AND DIRECTORS;
CORPORATE BOOKS; ELECTION OF DIRECTORS; NOTICES 17
ARTICLE IX
TRANSACTIONS WITH DIRECTORS OR OFFICERS 17
ARTICLE X
INDEMNIFICATION 18
ARTICLE XI
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS 21
ARTICLE XII
RESERVATION OF RIGHT TO AMEND CERTIFICATE
OF INCORPORATION 22
RESTATED CERTIFICATE OF INCORPORATION
OF
PAINEWEBBER INCORPORATED
The original Certificate of Incorporation of the Corporation
was filed in the office of the Secretary of State of Delaware on June 30,
1969. Restated Certificates of Incorporation were filed in the office of the
Secretary of State of Delaware on November 19, 1970 and on March 29, 1972.
This Restated Certificate of Incorporation was duly adopted by the
stockholders of the Corporation pursuant to and in accordance with the
provisions of Section 242 and Section 245 of the General Corporation Law of
the State of Delaware.
ARTICLE I
NAME
The name of the Corporation is:
PaineWebber Incorporated
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of
Delaware is to be located at No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is The Corporation Trust Company, No. 100 West Tenth Street,
in the City of Wilmington, County of New Castle, State of Delaware.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The purpose of the Corporation is to engage in any part of the
world in any capacity whether by itself or by or through any other person,
organization, association, partnership, corporation or other entity in which
the Corporation may have an interest in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware,
and the Corporation shall be authorized to exercise and enjoy all powers,
rights and privileges conferred upon corporations by the laws of the State of
Delaware as in force from time to time, including without limitation all
powers necessary or appropriate to carry out all those acts and activities in
which it may lawfully engage.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares, Classes and Series Authorized. The total
number of shares of capital stock which the Corporation shall have authority
to issue is fifty (50) shares of Series Preferred Stock of the par value of
five dollars ($5) each and one hundred (100) shares of Common Stock of the par
value of one dollar ($1) each. Such Series Preferred Stock and Common Stock
are sometimes hereinafter collectively called "capital stock."
SECTION 2. Designations, Powers, Preferences, Rights,
Qualifications, Limitations and Restrictions of Capital Stock. The following
is a statement of the designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, in respect of the
classes of the capital stock, and the authority with respect thereto expressly
vested in the Board of Directors of the Corporation:
Part I. Series Preferred Stock
(a) The Series Preferred Stock may be issued from time to
time in one or more series, the shares of each series to have such
powers, designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as are stated and expressed herein or in a
resolution or resolutions providing for the issue of such series,
adopted by the Board of Directors as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Section 2m to authorize
the issue of one or more series of Series Preferred Stock, in
addition to the series authorized below, and with respect to each such
series to fix by resolution or resolutions providing for the issue of
such series:
(i) The maximum number of shares to constitute such
series and the distinctive designation thereof;
(ii) Whether the shares of such series shall have
voting rights, in addition to any voting rights provided by
law, and, if so, the terms of such voting rights;
(iii) The dividend rate, if any, on the shares of such
series, the conditions and dates upon which such dividends
shall be payable, the preference or relation which such
dividends shall bear to the dividends payable on any other class
or classes or on any other series of capital stock, and whether
such dividends shall be cumulative or non-cumulative;
(iv) Whether the shares of such series shall be subject
to redemption by the Corporation, and, if made subject to
redemption, the times, prices and other terms and conditions of
such redemption;
(v) The rights of the holders of shares of such series
upon the liquidation, dissolution or winding up of the
Corporation;
(vi) Whether or not the shares of such series shall be
subject to the operation of a retirement or sinking fund, and,
if so, the extent to and manner in which any such retirement or
sinking fund shall be applied to the purchase or redemption of
the shares of such series for retirement or to other corporate
purposes and the terms and provisions relative to the operation
thereof;
(vii) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any
other class or classes, or of any other series of the same
class, and if so convertible or exchangeable, the price or
prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
(viii) The limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon
the payment of dividends or making of other distributions on,
and upon the purchase, redemption or other acquisition by the
Corporation, of the Common Stock or any other class or classes
of stock of the Corporation ranking junior to the shares of
such series either as to dividends or upon liquidation;
(ix) The conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issue
of any additional stock (including additional shares of such
series or of any other series or of any other class) ranking on
a parity with or prior to the shares of such series as to
dividends or distribution of assets on liquidation, dissolution
or winding up; and
(x) Any other preference and relative, participating,
optional, or other special rights, and qualifications,
limitations or restrictions thereof as shall not be
inconsistent with this Section 2.
(c) All shares of any one series of Series Preferred Stock
shall be identical with each other in all respects, except that
shares of any one series issued at different times may differ as to
the dates from which dividends, if any, thereon shall be cumulative;
and all series shall rank equally and be identical in all respects,
except as permitted by the foregoing provisions of Paragraph (b)
hereof; and all shares of Series Preferred Stock shall rank senior to
the Common Stock both as to dividends and upon liquidation.
(d) In the event of any liquidation, dissolution or winding
up of the Corporation, before any payment or distribution of the
assets of the Corporation (whether capital or surplus) shall be made
to or set apart for the holders of any class or classes of stock of
the Corporation ranking junior to the Series Preferred Stock upon
liquidation, the holders of the shares of the Series Preferred Stock
shall be entitled to receive payment at the rate fixed herein or in
the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series, plus (if dividends on shares
of such series of Series Preferred Stock shall be cumulative) an
amount equal to all dividends (whether or not earned or declared)
accumulated to the date of final distribution to such holders; but
they shall be entitled to no further payment. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the
holders of the shares of the Series Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid, then
such assets, or the proceeds thereof, shall be distributed among such
holders ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were paid in
full. For the purposes of this Paragraph (d), the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock,
securities, or other consideration) of all or substantially all the
property or assets of the Corporation shall be deemed a voluntary
liquidation, dissolution or winding up of the Corporation, but a
consolidation or merger of the Corporation with one or more other
corporations shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary.
(e) Except as shall be otherwise stated and expressed herein
or in the resolution or resolutions of the Board of Directors
providing for the issue of any series and except as otherwise
required by the laws of the State of Delaware, the holders of shares
of Series Preferred Stock shall have, with respect to such shares, no
right or power to vote on any question or in any proceeding or to be
represented at, or to receive notice of, any meeting of stockholders.
(f) One series of Series Preferred Stock authorized hereby
shall be "5% Non-Cumulative Voting Preferred Stock" ("5% Preferred
Stock"). The maximum number of shares of 5% Preferred Stock shall be
50.
(i) The shares of 5% Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors, out
of funds legally available for the payment of dividends,
dividends which shall be non-cumulative, at the annual rate of
$.25, and no more, payable in cash semi-annually on the last
business day of March and September in each year with respect
to the semi-annual period ending on the last day of the month
in which payment is made. The shares of 5% Preferred Stock
shall not otherwise be entitled to receive dividends. Cash
dividends may be declared and set apart for payment on any
other series of Series Preferred Stock in respect of any
semi-annual dividend period even if there shall not be or have
been declared and set apart for payment dividends on the 5%
Preferred Stock if the resolutions adopted by the Board of
Directors creating such other series of Preferred Stock so
provides. The Corporation may always pay dividends or make
distributions of assets with respect to its Common Stock or
purchase, redeem or otherwise acquire shares of its Common
Stock, while shares of the 5% Preferred Stock remain
outstanding, even if it is in default with respect to any
dividends payable on the shares of 5% Preferred Stock.
(ii) The shares of 5% Preferred Stock shall be preferred
over the shares of Common Stock of the Corporation as to assets
so that in the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of the 5% Preferred Stock shall be entitled to receive
out of the assets of the Corporation available for distribution
to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of shares of Common
Stock, an amount equal to $5 per share, plus an amount equal to
all cash dividends declared and unpaid on the shares of the 5%
Preferred Stock to the date of final distribution. If, upon
any liquidation, dissolution or winding up of the Corporation,
the assets of the Corporation, or proceeds thereof,
distributable among the holders of shares of 5% Preferred Stock
of this or any subsequent series shall be insufficient to pay
in full the preferential amount aforesaid, then such assets,
or the proceeds thereof, shall be distributed among such
holders ratably in accordance with the respective amounts which
would be payable on such shares if all amounts payable thereon
were payable in full, except with respect to any other series
authorized by a resolution which provides that the amounts
payable upon any liquidation, dissolution or winding up of the
Corporation need not be paid ratably. For the purposes hereof,
the voluntary sale, conveyance, exchange or transfer (for cash,
shares of stock, securities, or other consideration) of all or
substantially all the property or assets of the Corporation
shall be deemed a voluntary liquidation, dissolution or winding
up of the Corporation, but a consolidation or merger of the
Corporation with one or more other corporations shall not be
deemed to be a liquidation, dissolution or winding up, voluntary
or involuntary.
(iii) The shares of 5% Preferred Stock shall not be
entitled to the benefits of any purchase, retirement or sinking
fund to be applied to the purchase of shares of 5% Preferred
Stock.
(iv) (I) The Board of Directors of the Corporation at any
time and from time to time may redeem any or all of the
outstanding shares of 5% Preferred Stock at $5 per share, plus
an amount equal to all unpaid cash dividends declared and
unpaid on the 5% Preferred Stock to the date fixed for
redemption; provided, however, that not more than 180 and not
less than 30 days previous to the date fixed for redemption, a
notice of the time and place thereof shall be given to the
holders of record of the shares so to be redeemed in such
manner as may be prescribed by the Board of Directors.
(II) Upon any redemption of shares of 5% Preferred
Stock, the shares of 5% Preferred Stock so redeemed shall have
the status of authorized and unissued shares of 5% Preferred
Stock, and the number of shares of 5% Preferred Stock which the
Corporation shall have authority to issue shall not be
decreased by the redemption of shares of 5% Preferred Stock.
(v) The shares of the 5% Preferred Stock shall not be
convertible into, or exchangeable for, any other shares of
capital stock of the Corporation.
(vi) In addition to any voting rights to which they may
be entitled under the laws of the State of Delaware, the shares
of 5% Preferred Stock shall entitle the holders thereof to one
vote per share upon all matters upon which stockholders have
the right to vote, voting together with the Common Stock(and
any other class or series of capital stock having general voting
powers) as one class.
(vii) The shares of 5% Preferred Stock are transferable
only upon the consent of the Corporation.
Part II. Common Stock
(g) All shares of Common Stock shall be identical with each
other in every respect. The shares of Common Stock shall entitle the
holders thereof to one vote for each share upon all matters upon
which stockholders have the right to vote.
(h) The Common Stock is subject to all the powers, rights,
privileges, preferences and priorities of the Series Preferred Stock
as are stated and expressed herein and as shall be stated and
expressed in any resolution or resolutions adopted by the Board of
Directors pursuant to authority expressly granted to and vested in it
by the provisions of this Section 2.
ARTICLE V
RESTRICTION ON DIVIDENDS
No dividend shall be declared or paid which shall impair the
capital of the Corporation nor shall any distribution of assets be made to any
stockholder unless the value of the assets of the Corporation remaining after
such payment or distribution is at least equal to the aggregate of its debts,
liabilities and capital. A director shall be fully protected in relying in
good faith upon the books of account of the Corporation or statements prepared
by any of its officers or by independent public accountants as to the value
and amount of the assets, liabilities, net profits, capital stock and surplus
of the Corporation, or any other facts pertinent to the existence and amount
of surplus or other funds from which dividends might properly be declared and
paid.
ARTICLE VI
RIGHTS OF CORPORATION TO PURCHASE OR CONVERT
SHARES OF VOTING STOCK
SECTION 1. When Rights and Options Arise. In order to enable
the Corporation to qualify for membership, membership privileges or other
privileges on any of the various securities exchanges, boards of trade,
commodities exchanges, clearing corporations or associations and/or other
similar institutions located within or without the United States and to
continue so qualified in good standing, and in order to insure that the
business of the Corporation will be carried on in a manner consonant with the
Corporation's responsibilities to the public as an organization so qualified,
all shares of capital stock of the Corporation having general voting powers
(such capital stock being herein called "Voting Stock"), shall at all time be
held subject to all of the agreements, conditions and restrictions set forth
in this Certificate of Incorporation, as amended from time to time, the
provisions of which shall at all times apply equally both to an original
holder of shares and to each and every subsequent holder thereof, and each
holder of Voting Stock, by the acceptance of a stock certificate representing
shares of the Corporation's Voting Stock, agrees with the Corporation to such
agreements, conditions and restrictions, and as follows with respect to the
matters set forth in the following Paragraphs (a) and (b) of this Section 1:
(a) Whenever a holder of shares of Voting Stock is required
to be approved by the constitution or rules of the New York Stock
Exchange, Inc. or any other securities exchange, board of trade,
commodities exchange, clearing corporation or association, or similar
institution on which the Corporation has membership privileges
(collectively referred to as the "Exchange") and such holder fails or
ceases to be so approved, the Corporation is hereby authorized at its
option either (i) to purchase for cash, at the net book value
determined in accordance with Section 2 of this Article VI, the
shares of outstanding Voting Stock held by such holder, and/or (ii)
to issue non-voting shares of Series Preferred Stock authorized by
Article IV in exchange for shares of outstanding Voting Stock held by
such holder, the Series Preferred Stock to have a liquidation
preference equal to the net book value of the Voting Stock so
exchanged, determined in accordance with Section 2 of this Article
VI; provided, however, that the number of shares of Voting Stock so
purchased or exchanged shall not exceed that number of shares
required to reduce such person's ownership of Voting Stock below that
level at which a holder of Voting Stock is required to be approved.
Such Series Preferred Stock shall not have general voting powers and
shall not be convertible into Voting Stock.
(b) Whenever any parent of the Corporation within the meaning
of the constitution or rules of the Exchange fails or ceases to
satisfy the requirements of the constitution or rules of the Exchange
with respect to a parent, the Corporation is hereby authorized at its
option either (i) to purchase for cash, at the net book value
determined in accordance with Section 2 of this Article VI, the
shares of outstanding Voting Stock held by such holder, and/or (ii)
to issue shares of non-voting Series Preferred Stock authorized by
Article IV in exchange for shares of outstanding Voting Stock held by
such parent, the Series Preferred Stock to have a liquidation
preference equal to the net book value of the Voting Stock so
exchanged, as determined by the Board of Directors; provided,
however, that the number of shares of Voting Stock so purchased or
exchanged shall not exceed that number of shares required to reduce
such parent's direct or indirect ownership of such Voting Stock below
that level which enables such parent to exercise a controlling
influence over the management or policies of the Corporation. Such
Series Preferred Stock shall not have general voting powers and shall
not be convertible into Voting Stock.
SECTION 2. Determination of Net Book Value.
(a) Time of Determination of Net Book Value; Termination of
Rights. The net book value of any shares of the Voting Stock of the
Corporation to be purchased or converted upon the exercise of any
right and option arising pursuant to the provisions of Section 1 of
this Article VI shall be determined as of a date selected by the
Board of Directors, which date shall be within the period from 30
days before to 100 days after the date on which the Corporation mails
notice pursuant to Section 3 of this Article VI of its election to
exercise such right and option (such date selected by the Board of
Directors being in this Article VI referred to as the "valuation
date"). From and after the valuation date, all rights of the holder
of shares of Voting Stock to be purchased or converted pursuant to
the provisions of this Article VI, including, without limitation, all
dividend rights, shall permanently cease and terminate, excepting only
the right to receive the payment therefor on the payment date (as
hereinafter defined) in cash or shares of non-voting Series Preferred
Stock of the Corporation or both.
(b) Method of Determination of Net Book Value. The net book
value of shares of Voting Stock of the Corporation shall be
determined by the Corporation as follows:
(i) Shares of Common Stock. In determining net book
value, shares of Common Stock shall be treated identically.
The net book value of each share of Common Stock shall be
determined in accordance with sound accounting principles and
shall be adjusted up or down, as the case may be:
(A) to reflect the difference in the market value
of all securities and commodities owned by the
Corporation and the book value thereof;
(B) to reflect the book value (with adjustments
substantially similar to the adjustments described in
this Paragraph (i)) of the assets of any subsidiary of the
Corporation;
(C) to reflect the unrealized gain or loss on
short-sale commitments;
(D) to provide appropriate accruals and reserves
for, among other things, all taxes (including all taxes
based on income including net unrealized appreciation),
bonuses and all other employee compensation (including
compensation determined and payable after the end of the
then current fiscal year), reserves for contingent
liabilities and any other reserves which the Board of
Directors of the Corporation may deem proper, and all
other items of income and expense attributable to the
period prior to the date as of which the determination is
made which the Board of Directors of the Corporation may
deem proper; and
(E) to exclude any value whatsoever for
customers' lists, the records and files, leases and good
will appertaining to the business of the Corporation and
to exclude the difference between the market value of all
memberships owned by the Corporation or covered by
so-called "a-b-c agreements" and the book value thereof.
(ii) Shares of Series Preferred Stock. The net book
value of each share of Series Preferred Stock which may be
subject to the provisions of this Article VI shall be at the
lesser of the redemption price thereof as stated and expressed
herein or in a resolution or resolutions providing for the
issue of such series, if the shares of such series are
redeemable, or as determined in accordance with Paragraph (d)
of Section 2 of Article IV.
SECTION 3. Method of Exercising Corporation's Right and Option
to Purchase or Convert Shares. The method of exercising any right and option
arising pursuant to the provisions of Section 1 of this Article VI to purchase
or convert any shares of Voting Stock of the Corporation shall be effected by
the Corporation as follows:
(a) The Corporation shall mail by first class mail to the
address of the holder of the shares subject to such right and option
as the same shall appear on the books of the Corporation as of the
date such notice is mailed, a written notice advising of the election
to exercise such right and option, stating the total number of shares
to be purchased or converted; the valuation date; and the date
("payment date"), not less than 30 days or more than 180 days after
the date such notice is mailed, on which the shares will be purchased
or converted. After the net book value of such shares is determined,
the Corporation shall mail as aforesaid a second notice to such
holder, which notice shall state the time and place of the purchase
or conversion; the cash purchase price for, and/or the number of
shares of non-voting Series Preferred Stock to be issued in
conversion of, the shares of Voting Stock then purchased or
converted; and the designations, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions of any non-voting Series Preferred Stock
to be issued in conversion of Voting Stock. Such second notice shall
be mailed not less than 10 days in advance of such payment date. The
holder of the shares being so purchased or converted shall deliver the
certificate or certificates representing such shares, properly
endorsed for transfer, to the Corporation on the payment date
specified in such notice, against payment therefor.
(b) Any documentary stamp tax or transfer tax payable in
connection with the purchase or conversion of shares pursuant to this
Article VI shall be paid by the Corporation. If, on the payment
date, a holder shall fail to deliver the certificate or certificates
for his shares being purchased or converted properly endorsed for
transfer, the consideration to be paid for such shares shall be set
aside by the Corporation, in a special account for the benefit of
such holder, to be paid to such holder upon surrender of the
certificate or certificates for such shares properly endorsed for
transfer. The shares as to which such right and option have been so
exercised and for the purchase or conversion of which the
consideration has been so deposited shall have no further rights,
including, without limitation, any dividend rights. If such holder
of shares of Voting Stock shall not, within six years after the
payment date, claim the consideration with respect to the purchase or
conversion of his shares, the consideration so set aside by the
Corporation for his benefit shall at the option of the Board of
Directors revert to the Corporation, and thereupon such consideration
shall become contributions to the capital of the Corporation and the
holder of such shares shall have no further claim or right to such
cash or shares of non-voting Series Preferred Stock.
SECTION 4. Right of Holder to Dispose of Shares. Nothing in
this Article VI shall be deemed to affect the right of any holder of Voting
Stock to sell or dispose of any or all of his shares prior to a payment date,
and in the event such holder, before the close of business on the business day
next preceding such payment date, sells or otherwise disposes of any of the
shares of Voting Stock subject to purchase or conversion pursuant to this
Article VI and does not reacquire any thereof prior to such payment date, the
transaction otherwise contemplated pursuant to this Article VI shall not take
place as to the number of shares so sold or disposed of and the right and
option of the Corporation hereunder to acquire such number of shares shall
cease.
SECTION 5. Waiver by Corporation. The Corporation, in any
particular case or cases, may waive all or any of its rights and options under
any one or more of the provisions of this Article VI, but any such waiver shall
apply only to the case or cases wherein such rights or options are expressly
waived and no such waiver shall be construed to apply to any other case or
cases; provided, however, that the Corporation may not waive any provision if
the carrying out of the transaction contemplated by the waiver would be
contrary to, or result in any violation of, any law or any provision then in
effect of any constitution, rule or regulation of, or any policy of, any of
the various securities exchange,m boards of trade, commodities exchanges,
clearing corporations or associations and/or similar institutions with which
the Corporation has membership privileges or other privileges, or any rule or
regulation of the Securities and Exchange Commission or any governmental
agency having jurisdiction.
SECTION 6. Other Arrangements. Nothing in this Article VI
shall be deemed to prohibit or affect any contractual arrangements which the
Corporation may make from time to time with any of its shareholders to
purchase all or any part of the shares held by such holders or to arrange for
such purchase by others.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 1. Powers of the Board of Directors. In furtherance
and not in limitation of the powers conferred by statute, the Board of
Directors of the Corporation is expressly authorized:
(a) To make, alter, amend or repeal from time to time any of
the By-Laws of the Corporation, except such of them as shall have
been made from time to time by the holders of shares of capital stock
entitled to vote thereon; provided, however, that any By-Law made by
the Board of Directors may be altered, amended or repealed by the
holders of capital stock of the Corporation entitled to vote thereon
at any annual meeting or at any special meeting called for that
purpose.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus and
net profits of the Corporation, including the determination of the
amount of working capital required, to set apart out of any of the
funds of the Corporation, whether or not available for dividends, a
reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
(d) To designate, by resolution passed by a majority of the
whole Board, one or more committees, each committee to consist of one
or more directors of the Corporation, which, to the extent provided
in the resolution designating the committee or in the By-Laws of the
Corporation, shall have and may exercise subject to the provisions of
the General Corporation Law of Delaware the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all powers which may require it. Such committee or
committees shall have such name or names as may be provided in the
By-Laws of the Corporation or as may be determined from time to time
by resolution adopted by the Board of Directors.
(e) To adopt or assume and carry out such plans as may from
time to time be approved by it for the distribution among the
officers or employees of the Corporation, or any of them, in addition
to their regular salaries or wages, of part of the earnings of the
Corporation in consideration for or in recognition of the services
rendered by such officers or employees or as an inducement to future
efforts. No such plan which is not at the time of adoption or
assumption unreasonable or unfair shall be invalidated or in any way
affected because any director shall be a beneficiary thereunder or
shall vote for any plan under which he may benefit or for any
distribution thereunder in which he may participate.
(f) To adopt or assume and carry out such pension, deferred
compensation, profit-sharing or retirement plans as may from time to
time be approved by it, providing for pensions, deferred compensation,
profit-sharing plan benefits or retirement income for officers or
employees of the Corporation, in consideration for or in recognition
of the services rendered by such officers or employees or as an
inducement to future efforts. No such plan which is not at the time
of adoption or assumption unreasonable or unfair shall be invalidated
or in any way affected because any director shall be a beneficiary
thereunder or shall vote for any plan under which he may benefit or
for any distribution thereunder in which he may participate.
(g) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of
the laws of the State of Delaware and of this Certificate of
Incorporation and to the By-Laws of the Corporation.
SECTION 2. Reliance on Books. A director shall be fully
protected in relying in good faith upon the books of account of the
Corporation or statements prepared by any of its officers or by independent
public accountants as to the value and amount of the assets, liabilities
and/or net profits of the Corporation or any other facts pertinent to the
existence and amount of surplus or other funds with which the Corporation's
capital stock might properly be purchased or redeemed.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS AND DIRECTORS;
CORPORATE BOOKS; ELECTION OF DIRECTORS; NOTICES
Meetings of holders of the capital stock of the Corporation and
of the Board of Directors and of any committee thereof may be held outside the
State of Delaware if the By-Laws shall so provide. Any action required by the
General Corporation Law of Delaware to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which may be taken
at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all such
shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing. Any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a
meeting as provided by statute, if the By-Laws of the Corporation shall so
provide. Except as otherwise provided by law, the books of the Corporation
may be kept outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-Laws of the
Corporation. The elections of directors need not be by ballot unless the
By-Laws of the Corporation shall so provide. Any notice required by this
Certificate of Incorporation to be given by first class mail may instead be
delivered to the addressee in person.
ARTICLE IX
TRANSACTIONS WITH DIRECTORS OR OFFICERS
No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for
such purpose, if:
(1) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE X
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer or member of another corporation, partnership, joint
venture, trust, association or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a please of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that
his conduct was unlawful.
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer or member of another corporation,
partnership, joint venture, trust, association or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery of the State of Delaware or such other court shall
deem proper.
To the extent that any person referred to in the preceding two
Paragraphs has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to therein, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
The Corporation may, to the extent deemed advisable by the
Board of Directors, indemnify any person who is or was an employee or agent
(other than a director or officer) of the Corporation, or is or was serving at
the request of the Corporation as an employee or agent (other than a director,
officer or member) of another corporation, partnership, joint venture, trust,
association or other enterprise if such person would be entitled to such
indemnity under the provisions of the preceding three Paragraphs if such
person had been a director or officer of the Corporation or a director,
officer or member of such other corporation, partnership, joint venture, trust,
association or other enterprise.
Any indemnification under the first two Paragraphs or under the
fourth Paragraph of this Article X (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of a director, officer, member, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth therein. Such determination shall be made (1)
by the Board of Directors of the Corporation by a majority vote of a quorum
(as defined in the By-Laws of the Corporation) consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors of the Corporation in the manner provided in the next preceding
Paragraph upon receipt of an undertaking by or on behalf of the director,
officer, member, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article X.
The indemnification provided by this Article X shall not be
deemed exclusive of any other rights to which an indemnified person may be
entitled under any statute, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
member, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust, association or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article X or of the General Corporation Law of the
State of Delaware.
For the purposes of this Article X, references to "the
Corporation" include all constituent corporations absorbed in a consolidation
or merger as well as the resulting or surviving corporation so that any person
who is or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article X with respect to the resulting
or surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
ARTICLE XI
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution, or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders, of this Corporation, as
the case may be, to be summoned in such manner as said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders, of
this Corporation, as the case may be, agrees to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court of which the said application
has been made, be binding upon all the creditors or class of creditors, and/or
upon all the stockholders or class of stockholders, of this Corporation, as
the case may be, and also on this Corporation.
ARTICLE XII
RESERVATION OF RIGHT TO AMEND CERTIFICATE
OF INCORPORATION
The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all the provisions of this
Certificate of Incorporation and all rights and powers conferred in this
Certificate of Incorporation on stockholders, directors and officers are
subject to this reserve power.
IN WITNESS WHEREOF this Restated Certificate of Incorporation
has been executed by the Chairman of the Board of the Corporation, thereunto
duly authorized, and the seal of the Corporation has been duly affixed hereto,
this 1st day of February, 1974.
James W. Davant
James W. Davant, Chairman
of the Board
[CORPORATE SEAL]
ATTEST:
John H, Schweiger
John H, Schweiger, Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 1st day of February, 1974 personally came before me,
GILBERT H. BLEICH, a Notary Public in and for the County and State aforesaid,
JAMES W. DAVANT, Chairman of the Board of Paine, Webber, Jackson & Curtis
Incorporated, a Delaware corporation, and the corporation described in and
which executed the foregoing instrument, known to me personally to be such,
and he acknowledged that said instrument is the act and deed of said
corporation and that the facts stated therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of
office the day and year aforesaid.
GILBERT H. BLEICH
Notary Public
[NOTARIAL SEAL] GILBERT H. BLEICH
Notary Public, State of New York
No. 31-0313850
Qualified in New York County
Commission Expires March 30, 1975
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF
OWNERSHIP OF THE "PAINE, WEBBER, JACKSON & CURTIS INCORPORATED" A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING "BLYTH
EASTMAN PAINE WEBBER INCORPORATED" A CORPORATION ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE AS RECEIVED AND FILED IN THIS OFFICE
THE THIRTY-FIRST DAY OF MAY, A.D. 1984, AT 10 O'CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "PAINE WEBBER,
JACKSON & CURTIS INCORPORATED", HAS RELINQUISHED ITS CORPORATE TITLE AND
ASSUMED IN PLACE THEREOF "PAINE WEBBER INCORPORATED"
Glen C. Kenton, Secretary of State
AUTHENTICATION: 1025B254
DATE: 05/31/1984
CERTIFICATE OF OWNERSHIP AND MERGER
Pursuant to Section 253 of the
General Corporation Law of the State of Delaware
Merging
Blyth Eastman Paine Webber Incorporated
(Name of Subsidiary)
Into
Paine, Webber, Jackson & Curtis Incorporated
(Name of Parent)
Paine, Webber, Jackson & Curtis Incorporated, a corporation
organized and existing under the laws of the State of Delaware ("PWJC"), DOES
HEREBY CERTIFY:
FIRST: That PWJC was incorporated on the 30th day of June 1969
pursuant to the General Corporation Law of the State of Delaware.
SECOND: That PWJC owns all of the authorized and outstanding
shares of common stock, $1 par value, of Blyth Eastman Paine Webber
Incorporated ("BEPW"), a corporation incorporated on the 6th day of December
1979 pursuant to the General Corporation Law of the State of Delaware.
THIRD: That the Board of directors of PWJC duly adopted the
following resolutions by unanimous written consent as of the 25th day of May
1984 to merge into itself its wholly-owned subsidiary, BEPW:
RESOLVED, that PWJC merge, and it hereby does merge, into
itself its wholly-owned subsidiary, BEPW and assumes all of the
obligations of BEPW; and
RESOLVED, that the merger of BEPW into PWJC shall become
effective at 11:30 p.m. on May 31, 1984.
RESOLVED, that the proper officers of PWJC be and they hereby
are directed to prepare and execute a Certificate of Ownership and
Merger setting forth a copy of the resolutions to merge BEPW and
assume all of its obligations and the date of adoption thereof, and
to cause the same to be filed with the Secretary of State of the
State of Delaware and a certified copy recorded in the office of the
Recorder of Deeds of New Castle County, and to execute and deliver
such other documents, take such other action, and pay such expenses,
whether within or without the State of Delaware, as they or any of
them may deem necessary or proper to effect said merger; and
FURTHER RESOLVED, that PWJC change its corporate name by
changing Article I of the Restated Certificate of Incorporation of
PWJC to read as follows: "Article I Name The name of the
Corporation is: Paine Webber Incorporated."
FOURTH: Anything herein or elsewhere to the contrary
notwithstanding this merger may be amended or terminated and abandoned by the
board of directors of PWJC at any time prior to the date of filing of the
Certificate of Ownership and Merger with the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, said Paine, Webber, Jackson & Curtis
Incorporated has caused this Certificate to be signed by Donald E. Nickelson,
its President, and attested by Dorothy F. Haughey, its Secretary, this 25th
day of May, 1984.
PAINE, WEBBER, JACKSON & CURTIS
INCORPORATED
By
Donald E. Nickelson
President
ATTEST:
By
Dorothy F. Haughey
Secretary
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
This instrument was acknowledged before me this 25th day of
May, 1984 by DONALD E. NICKELSON and DOROTHY F. HAUGHEY, as President and
Secretary, respectively, of PAINE, WEBBER, JACKSON & CURTIS INCORPORATED, a
Delaware corporation, being authorized so to do on its behalf.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF
CORRECTION OF PAINE WEBBER INCORPORATED FILED IN THIS OFFICE ON THE SECOND DAY
OF JULY, A.D. 1984, AT 10 O'CLOCK A.M.
Glenn C. Kenton,
Secretary of State
AUTHENTICATION: 10279960
DATE: 07/02/1984
CERTIFICATE OF CORRECTION FILED TO CORRECT A CERTAIN ERROR IN
THE CERTIFICATE OF OWNERSHIP AND MERGER OF PAINE WEBBER
INCORPORATED FILED IN THE OFFICE OF THE SECRETARY OF STATE OF
DELAWARE ON MAY 31, 1984, AND RECORDED IN THE OFFICE OF THE
RECORDER OF DEEDS FOR NEW CASTLE COUNTY, DELAWARE ON MAY 31,
1984.
Paine Webber Incorporated, a corporation organized and exiting
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Paine Webber Incorporated.
2. That a Certificate of Ownership and Merger pursuant to
Section 253 of the General Corporation Law of the State
of Delaware was filed by the Secretary of State of
Delaware on May 31, 1984 and recorded in the office of
the Recorder of Deeds of New Castle Country on May 31,
1984, and that said Certificate requires correction as
permitted by subsection (f) of section 103 of the General
Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be
corrected is as follows: The last resolution quoted in
Section THIRD of said Certificate contains a
typographical error in the change of corporate name taken
by former Paine, Webber, Jackson & Curtis Incorporated
("PWJC").
4. Section THIRD of said Certificate is corrected in
relevant part to read as follows:
FURTHER RESOLVED, that PWJC change its corporate name by
changing Article I of the Restated Certificate of Incorporation
of PWJC to read as follows: "Article I Name The Name of the
Corporation is: PaineWebber Incorporated."
IN WITNESS WHEREOF, said Paine Webber Incorporated has caused
this Certificate to be signed by Donald E. Nickelson, its President, and
attested by Dorothy F. Haughey, its Secretary, this 27th day of June 1984.
PAINE WEBBER INCORPORATED
By
Donald E. Nickelson,
President
ATTEST:
By
Dorothy F. Haughey, Secretary
EXHIBIT 1.8
BY-LAWS
OF
PAINEWEBBER INCORPORATED
Incorporated under the laws
of the State of Delaware
As amended effective June 10, 1991
BY-LAWS
OF
PaineWebber Incorporated
ARTICLE I
Offices
The registered office of PaineWebber Incorporated (hereinafter
referred to as the "Corporation") in the State of Delaware shall be located in
the City of Wilmington, County of New Castle. The Corporation's principal
place of business shall be at 140 Broadway, City, County and State of New
York. The Corporation may establish or discontinue, from time to time, such
other offices and places of business within or without the State of Delaware
as may be deemed proper for the conduct of the Corporation's business.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meeting. An annual meeting of such holders
of stock as are entitled to vote thereat pursuant to the provisions of the
Certificate of Incorporation (hereinafter referred to as the "annual meeting
of stockholders") shall be held for the election of directors on such date and
at such time as may be designated by the Board of Directors. Any other proper
business may be transacted at the annual meeting of stockholders. If the
annual meeting of stockholders is not held on the date designated therefor,
the Board of Directors shall cause the meeting to be held as soon thereafter
as convenient.
Section 2. Special Meetings. In addition to such special
meetings as are provided for by law or by the Certificate of Incorporation,
special meetings of the holders of any class or series or of all classes or
series of the Corporation's capital stock may be called at any time by the
Board of Directors, and special meetings of the holders of the Common Stock
shall be called by the Secretary upon the written request, stating the purpose
or purposes of any such meeting, of the holders of Common Stock who hold of
record collectively at least 33-1/3% of the outstanding shares of Common Stock
of the Corporation. Special meetings shall be called by means of a notice as
provided for in Section 4 of this Article II.
Section 3. Place of Meetings. All meetings of the
stockholders shall be held at such place within or without the State of
Delaware as shall be designated by the Board of Directors.
Section 4. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called. The notice of annual meeting shall identify each
matter intended to be acted upon at such meeting. If mailed, the notice shall
be addressed to the stockholder in a postage-prepaid envelope at his address
as it appears on the records of the Corporation unless, prior to the time of
mailing, the Secretary shall have received from any such stockholder a written
request that notices intended for him be mailed to some other address, in
which case notices intended for such stockholder shall be mailed to the
address designated in such request. Notice of each meeting of stockholders
shall be delivered personally or mailed not less than ten nor more than 60 days
before the day of the meeting to each stockholder entitled to vote at such
meeting.
Section 5. Waiver of Notice. Whenever notice is required to
be given, a written waiver thereof signed by the person entitled to notice or
by his proxy or attorney duly authorized, whether before or after the time
stated thereon, shall be deemed equivalent to notice. Attendance of a person
at a meeting of stockholders shall constitute a waiver of notice of such
meeting, except as otherwise provided by law. Neither the business to be
transacted at nor the purpose of any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
Section 6. Organization. The Chairman of the Board shall act
as chairman at all meetings of stockholders at which he is present, and as
such chairman shall call such meetings of stockholders to order and preside
thereat. If the Chairman of the Board shall be absent from any meeting of
stockholders, the duties otherwise provided in this Section 6 to be performed
by him at such meeting shall be performed at such meeting by the President or
a division President. If both the Chairman of the Board and the President
shall be absent, such duties shall be performed by the Chairman of the
Executive Committee or, in his absence, by an officer designated by the
Chairman of the Board. If no such officer is present at such meeting, any
stockholder or the proxy of any stockholder entitled to vote at the meeting
may call the meeting to order and a chairman to preside thereat shall be
elected by a majority of those present and entitled to vote. The Secretary of
the Corporation shall act as secretary at all meetings of the stockholders,
but in his absence the chairman of the meeting may appoint any person present
to act as secretary of the meeting.
Section 7. Quorum and Adjournment. Except as otherwise
provided by law, the holders of a majority of the shares of capital stock
entitled to vote at the meeting shall constitute a quorum at all meetings of
the stockholders. In the absence of a quorum, the holders of a majority of
all such capital shares of stock present in person or by proxy may adjourn any
meeting, from time to time, until a quorum shall attend. 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. No notice of
any adjourned meeting need be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. If the
adjournment is for more than 30 days or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote of Stockholders. Except as otherwise
permitted by law, by the Certificate of Incorporation or by Section 10 of this
Article II, all action by stockholders shall be taken at a stockholders'
meeting. Every stockholder of record who is entitled to vote shall at every
meeting of the stockholders be entitled to one vote for each share of stock
entitled to vote held by such stockholder on the record date. Every
stockholder entitled to vote shall have the right to vote in person or by
proxy. Unless otherwise provided by law, by the Certificate of Incorporation
or by Section 13 of Article III hereof, each director shall be elected and all
other questions shall be decided by the vote of the holders of a majority of
the shares of capital stock present in person or by proxy at the meeting and
entitled to vote on the question; provided, however, that the Board of
Directors may require on any question a vote of a majority of the shares of
capital stock outstanding and entitled to vote thereon.
Section 9. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. A proxy acting for any stockholder shall be duly appointed by an
instrument in writing subscribed by such stockholder.
Section 10. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of Incorporation, any action
required by the General Corporation Law of Delaware to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE III
Board of Directors
Section 1. Election and Term. Except as otherwise provided by
law or by this Article III, directors shall be elected at the annual meeting
of stockholders and shall hold office until the next annual meeting of
stockholders and until their successors are elected and qualify, or until they
sooner die, resign or are removed.
Section 2. Qualification. Directors shall, if required by any
securities exchange, board of trade, commodities exchange, clearing
corporation or association, or similar institution on which the Corporation has
membership privileges, be approved by such institution. Whenever any director
ceases to be approved by an institution on which the Corporation has membership
privileges, if such approval is required, he shall thereupon also cease to be
a director without any further action on his part or on the part of the Board
of Directors or the stockholders. The directors need not be stockholders.
Section 3. Number. The number of directors which shall
constitute the whole Board may be fixed from time to time by resolution of the
Board of Directors but shall not be less than three.
Section 4. General Powers. The business, properties and
affairs of the corporation shall be managed by the Board of Directors which,
without limiting the generality of the foregoing, shall have power to appoint
the officers and agents of the Corporation, to fix and alter the salaries of
officers, employees and agents of the Corporation, and to grant general or
limited authority (including authority to delegate and sub-delegate) to
officers, employees and agents of the corporation to make, execute, affix the
corporate seal to, and deliver contracts and other instruments and documents,
including bills, notes, checks or other instruments for the payment of money,
in the name and on behalf of the Corporation without specific authority in
each case. In addition, the Board of Directors may exercise all the powers of
the Corporation and do all lawful acts and things which are not reserved to the
stockholders by law, by the Certificate of Incorporation or by the By-Laws.
Section 5. Place of Meetings. Meetings of the Board of
Directors or of any committee thereof may be held at the principal place of
business of the Corporation in the City of New York or at any other place,
within or without the State of Delaware, from time to time designated by the
Chairman of the Board of Directors or the chairman of the committee.
Section 6. Annual Meeting. A newly elected Board of Directors
shall meet and organize without notice and as soon as a practicable after each
annual meeting of stockholders for the purpose of organization and the
transaction of other business, unless it shall transact all such business by
written consent pursuant to Section 11 of this Article III.
Section 7. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as may be determined by resolution of
the Board of Directors and no notice shall be required for any regular
meeting. Except as otherwise provided by law, any business may be transacted
at any regular meeting of the Board of Directors.
Section 8. Special Meetings; Notice and Waiver of Notice.
Special meetings of the Board of Directors shall be called by the Secretary or
an Assistant Secretary on the request of the Chairman of the Board or the
President, or on the request in writing of one third of the whole Board of
Directors stating the purpose or purposes of such meeting. Notices of special
meetings shall be mailed to each director, addressed to him at his residence
or usual place of business, not later than three days before the day on which
the meeting is to be held, or shall be sent to him at either of such places by
telex or telegraph, or be communicated to him personally or by telephone, not
later than the day before such day of meeting. Notice of any meeting of the
Board of Directors need not be given to any director if he shall sign a
written waiver thereof either before or after the time stated therein for such
meeting. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Unless limited by law, the Certificate of Incorporation, the
By-Laws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
Section 9. Organization. The Chairman of the Board shall
preside at all meetings of the Board of Directors at which he is present. If
the Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 9 to be performed by
him at such meeting shall be performed at such meeting by the President or a
division President. If the Chairman of the Board, the President and a division
President(s) shall be absent, such duties shall be performed by the Chairman
of the Executive Committee or, in his absence, by a director designated by the
Chairman of the Board. If no such officer or director is present at such
meeting, one of the directors present shall be chosen by the members of the
Board of Directors present to preside at such meeting. The Secretary or
Assistant Secretary of the Corporation shall act as the secretary at all
meetings of the Board of Directors and in his absence a temporary secretary
shall be appointed by the chairman of the meeting.
Section 10. Quorum and Adjournment; Telephonic Conference.
Except as otherwise provided by Section 14 of this Article III, at every
meeting of the Board of Directors a majority of the Directors then in office
shall constitute a quorum but in no event shall a quorum be constituted by
less than one third of the total number of directors as from time to time
fixed pursuant to Section 3 of this Article III. Except as otherwise provided
by law, or by Section 14 of this Article III, or by Section 1 or Section 6 of
Article IV, or by Section 1 of Article VI, or by Article X, the vote 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. In the absence of a
quorum, any meeting may be adjourned, from time to time, until a quorum is
present. No notice of any adjourned meeting need be given other than by
announcement at the meeting that is being adjourned. Members of the Board of
Directors may participate in a meeting thereof by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 11. Acting Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board
of Directors or of such committee, as the case may be, consent thereto in
writing and such written consents are filed with the minutes of proceedings of
the Board of Directors or the committee.
Section 12. Resignations. Any director may resign at any time
either by oral tender of resignation at any meeting of the Board of Directors
or by oral tender to the Chairman of the Board or the President or by written
notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other time is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective
unless such resignation is tendered subject to such acceptance.
Section 13. Removal of Directors. Any director may be
removed, either for or without cause, at any time by action of the holders of
record of a majority of the shares of Common Stock of the Corporation entitled
to vote at an election of directors, or by written consent of the stockholders
pursuant to Section 10 of Article II.
Section 14. Filling of Vacancies. Except as otherwise
provided by law, in case of any increase in the number of directors or of any
vacancy created by death, resignation, removal or disqualification, the
additional director or directors may be elected or the vacancy or vacancies
may be filled, as the case may be, by the Board of Directors by affirmative
vote of a majority of the remaining directors or by a sole remaining director
though the remaining director or directors be less than the quorum provided
for in Section 10 of this Article III. The directors so chosen shall hold
office until the next annual meeting of stockholders and until their
successors are elected and qualify, or until such directors sooner die, resign
or are removed.
ARTICLE IV
Executive Committee
Section 1. Appointment and Powers. The Board of Directors
shall, by resolution adopted by affirmative vote of a majority of the whole
Board of Directors, appoint an Executive Committee which shall have and may
exercise, during the intervals between the meetings of the Board of Directors,
all the powers of the Board of Directors in the management of the business,
properties and affairs of the Corporation, including, without limitation, the
authority to declare dividends or distributions and to take all action
provided in the By-Laws to be taken by the Board of Directors and the powers
of the Board of Directors referred to in Article VI of the Certificate of
Incorporation to effect, or which are related or incidental to, the conversion
or purchase of shares of the Corporation's capital stock; provided, however,
that the foregoing is subject to the applicable provisions of law and shall
not be construed as authorizing action by the Executive Committee with respect
to any action which pursuant to Section 14 of Article III, Section 1 and
Section 6 of this Article IV, Section 1 of Article VI, and Article X is
required to be taken by vote of a specified proportion of the whole Board of
Directors. The Executive Committee shall consist of the Chairman of the
Board, the Chairman of the Executive Committee, the President, and such number
of other directors as may from time to time be designated by the Board of
Directors, the total number of members being not less than three. So far as
practicable, the members of the Executive Committee shall be appointed at the
annual meeting of the Board of Directors in each year, and, unless sooner
discharged by affirmative vote of a majority of the whole Board of Directors,
shall hold office until the next annual meeting of the Board of Directors and
until their respective successors are appointed, or until they sooner die,
resign, are removed or cease to be qualified as directors. All acts done and
powers conferred by the Executive Committee shall be deemed to be, and may be
certified as being, done or conferred under authority of the Board of
Directors.
Section 2. Meetings; Notice and Waiver of Notice. Regular
meetings of the Executive Committee shall be held at such times as may be
determined by resolution either of the Board of Directors or the Executive
Committee and no notice shall be required for any regular meeting. Special
meetings of the Executive Committee shall be called by the Secretary or an
Assistant Secretary upon the request of any member thereof. Notices of
special meetings shall be mailed to each member, addressed to him at his
residence or usual place of business, not later than three days before the day
on which the meeting is to be held, or shall be sent to him at such place by
telex or telegraph, or be delivered to him personally or by telephone, not
later than the day before such day of meeting. Notices of any such meeting
need not be given to any member of the Executive Committee, however, if he
shall sign a written waiver thereof either before or after the time stated
therein for such meeting, or if he shall be present at the meeting and
participate in the business transacted thereat; and any and all business
transacted at any meeting of the Executive Committee shall be fully effective
without any notice thereof having been given, if all the members shall be
present thereat. Unless limited by law, the Certificate of Incorporation, the
By-Laws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
Section 3. Organization. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee at which he
is present. In the absence of the Chairman of the Executive Committee, the
Chairman of the Board shall preside at meetings of the Executive Committee at
which he is present. In the absence of the Chairman of the Executive
Committee and Chairman of the Board, one of the members present shall be
chosen by the members of the Executive Committee present to preside at such
meeting. The Secretary of the Corporation shall act as secretary at all
meetings of the Executive Committee and in his absence a temporary secretary
shall be appointed by the chairman of the meeting.
Section 4. Quorum and Adjournment; Manner of Acting. A
majority of the members of the Executive Committee shall constitute a quorum
for the transaction of business, and the act of a majority of those present at
any meeting at which a quorum is present shall be the act of the Executive
Committee. In the absence of a quorum, any meeting may be adjourned, from
time to time, until a quorum is present. No notice of any adjourned meeting
need be given other than by announcement at the meeting that is being
adjourned. Members of the Executive Committee may participate in a meeting
thereof by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each
other, and such participation in a meeting will constitute presence in person
at such meeting. The provisions of Section 11 of Article III with respect to
written action in lieu of meeting shall apply to action taken by the Executive
Committee.
Section 5. Records. The Executive Committee shall keep
minutes of its acts and proceedings, which shall be submitted at the next
regular meeting of the Board of Directors, and any action taken by the Board
of Directors with respect thereto shall be entered in the minutes of the Board
of Directors.
Section 6. Vacancies; Alternate Members; Absences. Any
vacancy among the appointed members of the Executive Committee may be filled
by affirmative vote of a majority of the whole Board of Directors. The Board
of Directors may designate one or more directors as alternate members of the
Executive Committee who may replace any absent or disqualified member at any
meeting of the Executive Committee. In the absence or disqualification of any
member of the Executive Committee, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
ARTICLE V
Finance Committee
Section 1. Appointment and Powers. The Board of Directors
may, by resolution adopted by affirmative vote of a majority of the Board of
Directors, appoint a Finance Committee which shall have such powers and duties
as the Board of Directors may properly determine. The Committee shall consist
of a Chairman and such number of other persons, if any, as may from time to
time be designated by the Board of Directors. The Chairman of the Board and
the President and any division President shall be ex officio members of the
Finance Committee. So far as practicable, the members of the Finance
Committee shall be appointed at the annual meeting of the Board of Directors,
and, unless sooner discharged by affirmative vote of a majority of the Board
of Directors, shall hold office until the next annual meeting of the Board of
Directors and until their respective successors are appointed, or until they
sooner die, resign, or are removed.
Section 2. Meetings; Notice and Waiver of Notice. Regular
meetings of the Finance Committee shall be held at such times as may be
determined by resolution either of the Board of Directors or the Finance
Committee and no notice shall be required for any regular meeting. Special
meetings of the Finance Committee shall be called by the Secretary or an
Assistant Secretary upon the request of the Chairman or of any two members
thereof. Notices of special meetings shall be mailed to each member,
addressed to him at his residence or usual place of business, not later than
three days before the day on which the meeting is to be held, or shall be sent
to him at such place by telex or telegraph, or be delivered to him personally
or by telephone, not later than the day before such day of meeting. Notices
of any such meeting need not be given to any member of the Finance Committee,
however, if he shall sign a written waiver thereof either before or after the
time stated therein for such meeting, or if he shall be present at the meeting
and participate in the business transacted thereat; and any and all business
transacted at any meeting of the Finance Committee shall be fully effective
without any notice thereof having been given, if all the members shall be
present thereat. Unless limited by law, the Certificate of Incorporation, the
By-Laws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
Section 3. Organization. The Chairman of the Finance
Committee shall preside at all meetings of the Finance Committee at which he
is present. In the absence of the Chairman of the Finance Committee, one of
the members present shall be chosen by the members of the Finance Committee
present to preside at such meeting. The Secretary of the Corporation shall
act as secretary at all meetings of the Finance Committee and in his absence a
temporary secretary shall be appointed by the Chairman of the meeting.
Section 4. Quorum and Adjournment; Manner of Acting. A
majority of the members of the Finance Committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of the Finance
Committee. In the absence of a quorum, any meeting may be adjourned, from
time to time, until a quorum is present. No notice of any adjourned meeting
need be given other than by announcement at the meeting that is being
adjourned. Members of the Finance Committee may participate in a meeting
thereof by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each
other, and such participation in a meeting will constitute presence in person
at such meeting. The provisions of Section 11 of Article III with respect to
written action in lieu of a meeting shall apply to action taken by the Finance
Committee.
Section 5. Records. The Finance Committee shall keep minutes
of its acts and proceedings, which shall be submitted at the next regular
meeting of the Board of Directors, and any action taken by the Board of
Directors with respect thereto shall be entered in the minutes of the Board of
Directors.
Section 6. Vacancies; Alternate Members; Absences. Any vacancy
among the appointed members of the Finance Committee may be filled by
affirmative vote of a majority of the Board of Directors. The Board of
Directors may designate one or more persons as alternate members of the
Finance Committee who may replace any absent or disqualified member at any
meeting of the Finance Committee. In the absence or disqualification of any
member of the Finance Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint a member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
ARTICLE VI
Other Committees of the Board
Section 1. Appointing Other Committees of the Board. The
Board of Directors may from time to time, by resolution adopted by affirmative
vote of a majority of the whole Board of Directors, appoint other committees
of the Board of Directors which shall have such powers of the Board of
Directors and such duties as the Board of Directors may properly determine.
The Chairman of the Board shall be an ex officio member of all such
committees. The Board of Directors may designate one or more directors as
alternate members of any such committee who may replace any absent or
disqualified member at any meeting of such committee. In the absence or
disqualification of any member of such committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent
or disqualified member.
Section 2. Time of Meetings; Notice and Waiver of Notice;
Records. Regular meetings of any such committee shall be held at such times
as may be determined by resolution of the Board of Directors or the committee
in question, and no notice shall be required for any regular meeting. A
special meeting of any such Committee shall be called by resolution of the
Board of Directors, or by the Secretary or an Assistant Secretary upon the
request of any member of the committee. The provisions of Section 2 of
Article IV with respect to notice and waiver of notice of special meetings of
the Executive Committee shall also apply to all special meetings, and the
provisions of Section 10 of Article III with respect to participation in
meetings of the Executive Committee by means of telephone or similar
communications equipment shall apply to all meetings of other committees of
the Board of Directors. The provisions of Section 11 of Article III with
respect to written action in lieu of a meeting shall apply to action taken by
any such committee. Any such committee may make rules for holding and
conducting its meetings and shall keep minutes of all meetings.
ARTICLE VII
The Officers
Section 1. Officers. The officers of the Corporation shall be
a Chairman of the Board, a Chairman of the Executive Committee, a President
and/or one or more division Presidents, a Secretary, a Treasurer and a
Controller. The officers shall be appointed by the Board of Directors. The
Board of Directors may also appoint a Chairman of the Executive Group and one
or more Vice Chairmen, Managing Directors, Vice Presidents (including
classifications thereof such as Assistant, First, Senior and Executive),
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents as in their judgment may be necessary or desirable.
The Chairman of the Board, one or more Vice Chairmen, the President and/or
division Presidents, and the Chairman of the Executive Committee shall be
selected from the Directors. The Board of Directors may also award divisional
officer titles to employees of the Corporation; such divisional officers,
except for division Presidents, shall not be officers of the Corporation,
shall have no power to bind the Corporation, and shall perform such duties and
exercise such powers as may be assigned to them by any superior officer.
Section 2. Terms of Office; Vacancies. So far as is
practicable, all officers shall be appointed at the annual meeting of the
Board of Directors in each year, and, except as otherwise provided in Sections
1, 3 and 4 of this Article VII, shall hold office until the annual meeting of
the Board of Directors in the next subsequent year and until their respective
successors are elected and qualify, or until they sooner die, retire, resign
or are removed. If any vacancy shall occur in any office, the Board of
Directors or the Executive Committee thereof may appoint a successor to fill
such vacancy for the remainder of the term.
Section 3. Removal of Officers. Any officer may be removed at
any time, either for or without cause, by affirmative vote of a majority of
the Board of Directors or the Executive Committee thereof, at any regular
meeting or at any special meeting called for that purpose.
Section 4. Resignations. Any officer may resign at any time,
either by oral tender of resignation to the Chairman of the Board or the
President or by giving written notice thereof to the Corporation. Any
resignation shall be effective immediately unless some other date is specified
for it to take effect and acceptance of any resignation shall not be necessary
to make it effective unless such resignation is tendered subject to such
acceptance.
Section 5. Officers Holding More Than One Office. Any officer
may hold two or more offices the duties of which can be consistently performed
by the same person.
Section 6. The Chairman of the Board; Vice Chairman of the
Board. (a) The Chairman of the Board shall be a member of the Board of
Directors and the Executive Committee; he shall be the Chief Executive Officer
of the Corporation and, subject to the control of the Board of Directors,
shall have general and active management and control of all the business,
policies and affairs of the Corporation; he shall act as chairman at all
meetings of the stockholders at which he is present; he shall preside at all
meetings of the Board of Directors at which he is present; and in the absence
of the Chairman of the Executive Committee, he shall preside at all meetings
of the Executive Committee at which he is present. He shall also perform such
other duties and have such other powers as may, from time to time, be assigned
to him by the Board of Directors. (b) A Vice Chairman of the Board shall be
a member of the Board of Directors and shall perform such duties and have such
powers as may from time to time be assigned to him by the Board of Directors
or the Chairman of the Board.
Section 7. The Chairman of the Executive Committee. The
Chairman of the Executive Committee shall be a member of the Board of
Directors and the Executive Committee. He shall preside at all meetings of the
Executive Committee and shall perform such duties and have such powers as may
from time to time be assigned to him by the Board of Directors or the Chairman
of the Board.
Section 8. The President. The President shall be a member of
the Board of Directors and a member of the Executive Committee. As provided
in Article III, Section 6 and Article III, Section 9, the President shall
preside at the various meetings under the circumstances described in such
Sections. The functions of the President may also be subdivided by
operational divisions of the Corporation in which case the Board of Directors
or the Executive Committee thereof shall elect one or more division
Presidents. If such officer is not available, the duties of the President
shall be performed and his powers may be exercised by such member of the Board
of Directors as may be designated by the Chairman of the Board, and failing
such designation or in the absence of the person so designated, by such member
of the Board of Directors as may be designated by the Board of Directors.
Section 9. The Chairman of the Finance Committee. The Chairman
of the Finance Committee shall be a member of the Board of Directors and the
Finance Committee. He shall preside at all meetings of the Finance Committee
and perform such duties and have such powers as may from time to time be
assigned to him by the Board of Directors or the Chairman of the Board.
Section 10. The Vice Presidents and Managing Directors. The
Vice Presidents and Managing Directors shall perform such duties and have such
powers as may, from time to time, be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
or a division President. Except where by law the signature of the President
is required, a Vice President or a Managing Director shall possess the power
to sign certificates, contracts, obligations and other instruments on behalf
of the Corporation.
Section 11. The Secretary. The Secretary shall cause the
giving of notice of all meetings of stockholders and of the Board of Directors
and committees thereof, and shall act as secretary at all meetings of
stockholders, directors and the Executive Committee, and keep minutes of all
proceedings at such meetings, as well as of all proceedings at all meetings of
such other committees of the Board of Directors as shall designate him to so
serve. The Secretary shall have charge of the corporate seal and he or any
Assistant Secretary shall have authority to attest any and all instruments or
writings to which the same may be affixed. He shall keep and account for all
books, documents, papers and records of the Corporation, except those for
which some other officer or agent is properly accountable. He shall generally
perform all the duties usually appertaining to the office of secretary of a
corporation. In the absence of the Secretary, such person as shall be
designated by the chairman of any meeting shall perform his duties.
Section 12. The Treasurer. The Treasurer shall have the care
and custody of all the funds of the Corporation and shall deposit the same in
such banks or other depositories as the Board of Directors, the Executive
Committee, or any officer or officers thereunto duly authorized by the Board
of Directors or the Executive Committee shall, from time to time, direct or
approve. He shall generally perform all the duties usually appertaining to
the affairs of the treasurer of a corporation. Except where by law the
signature of the President is required, the Treasurer shall possess the power
to sign certificates, contracts, obligations and other instruments on behalf of
the Corporation. When required by the Board of Directors, he shall give bonds
for the faithful discharge of his duties in such sums and with such sureties
as the Board of Directors shall approve. In the absence of the Treasurer,
such person as shall be designated by the Chairman of the Board shall perform
his duties.
Section 13. The Controller. The Controller shall prepare and
have the care and custody of the books of account of the Corporation. He
shall keep a full and accurate account of all moneys received and paid on
account of the Corporation, and shall render a statement of his accounts
whenever the Board of Directors shall require. He shall generally perform all
the duties usually appertaining to the affairs of the controller of a
corporation. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sums and with such sureties as
the Board of Directors shall approve. In the absence of the Controller, any
person as shall be designated by the Chairman of the Board shall perform his
duties.
Section 14. Additional Powers and Duties. In addition to the
foregoing especially enumerated duties and powers, the several officers of the
Corporation shall perform such other duties and exercise such further powers
as the Board of Directors may, from time to time, determine, or as may be
assigned to them by any superior officer.
ARTICLE VIII
Stock and Transfers of Stock
Section 1. Stock Certificates. The capital stock of the
Corporation shall be represented by certificates signed by two officers of the
Corporation, one being the Chairman of the Board, the President or a vice
President and the other being the Secretary or an Assistant Secretary, and
sealed with a seal of the Corporation. Stock certificates may, in the
discretion of the Board of Directors, also be countersigned by a Transfer
Agent or Agents, and registered by a Registrar of transfers, to be appointed
by the Board. Any of or all signatures on a stock certificate, may, if the
Board of Directors so determines, be a facsimile. The seal may be a
facsimile, engraved or printed. In case any such officer who has signed any
such certificate shall have ceased to be such officer before such certificate
is issued, it may nevertheless be issued by the Corporation with the same
effect as if he were such officer at the date of issue.
Section 2. Registration of Transfers of Stock. Registration
of a transfer of stock shall be made on the books of the Corporation only upon
presentation by the person named in the certificate evidencing such stock, or
by an attorney lawfully constituted in writing, and upon surrender and
cancellation of such certificate, with duly executed assignment and power of
transfer endorsed thereon or attached thereto, and with such proof of the
authenticity of the signature thereon as the Corporation or its agents may
reasonably require.
Section 3. Lost Certificates. In case any certificate of
stock shall be lost, stolen or destroyed the Board of Directors or the
Executive Committee, in its discretion, or any officer or officers thereunto
duly authorized by the Board of Directors or the Executive Committee, may
authorize the issuance of a substitute certificate in the place of the
certificate so lost, stolen or destroyed; provided, however, that, in each
such case, the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation
evidence which the Corporation determines in its discretion is satisfactory of
the loss, theft or destruction of such certificate and of the ownership
thereof, and may also require a bond sufficient to indemnify it against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 4. Determination of Stockholders of Record. In order
that the Corporation may determine the stockholders entitled to notice of or
to vote at any meetings of stockholders or any adjournment thereof, to express
consent to corporate action in writing without a meeting, to receive payment
of any dividend or other distribution or allotment of any rights, to exercise
any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors or the
Executive Committee may fix in advance a record date which shall not be more
than 60 or less than 10 days prior to any such action. A determination of
stockholders entitled to notice of or to vote at a meeting of the stockholders
shall apply to any adjournment of the meeting; provided, however, that the
Board of Directors or the Executive Committee may fix a new record date for
the adjourned meeting.
ARTICLE IX
Indemnification
Section 1. Right to Indemnification. The Corporation shall to
the fullest extent permitted by applicable law as then in effect, indemnify
any person (the "Indemnitee") who is or was a director or officer of the
Corporation or is or was involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved
in any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including without limitation, any action, suit or proceeding by or in the
right of the Corporation to procure a judgment in its favor) (a "Proceeding")
by reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise (including, without limitation, any employee benefit plan)
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such Proceeding. Such indemnification shall be a contract
right and shall include the right to receive payment in advance of any
expenses incurred by the Indemnitee in connection with such Proceeding,
consistent with the provisions of applicable law as then in effect.
Section 2. Insurance, Contracts and Funding. The Corporation
may purchase and maintain insurance to protect itself and any person entitled
to indemnity under this Article VII against any expenses, judgments, fines and
amounts paid in settlement as specified in the first section of this Article
or incurred by any such person in connection with any Proceeding referred to
in this Article IX, to the fullest extent permitted by applicable law as then
in effect. The Corporation may enter into contracts with any person entitled
to indemnity under this Article IX in furtherance of the provisions of this
Article IX and may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Article.
Section 3. Indemnification; Not Exclusive Right. The right of
indemnification provided in this Article IX shall not be exclusive of any
other rights to which those seeking indemnification may otherwise be entitled,
and the provisions of this Article IX shall inure to the benefit of the heirs
and legal representatives of any person entitled to indemnity under this
Article IX and shall be applicable to Proceedings commenced or continuing
after the adoption of this Article IX, whether arising from acts or omissions
occurring before or after such adoption.
Section 4. Advancement of Expenses; Procedures; Presumptions and
Effect of Certain Proceedings; Remedies. In furtherance, but not in
limitation of the foregoing provisions, the following procedures, presumptions
and remedies shall apply with respect to advancement of expenses and the right
to indemnification under this Article IX:
(a) Advancement of Expenses. All reasonable expenses incurred
by or on behalf of the Indemnitee in connection with any Proceeding shall be
advanced to the Indemnitee by the Corporation within 20 days after the receipt
by the Corporation of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by the Indemnitee and, if required by law at
the time of such advance, shall include or be accompanied by an undertaking by
or on behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such expenses pursuant to this Article IX.
(b) Procedure for Determination of Entitlement to
Indemnification. (i) to obtain indemnification under this Article IX, an
Indemnitee shall submit to the Secretary of the Corporation a written request,
including such documentation and information as is reasonably available to the
Indemnitee and reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification (the "Supporting
Documentation"). The determination of the Indemnitee's entitlement to
indemnification shall be made not later than 60 days after receipt by the
Corporation of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article IX shall be determined in one of the following ways: (A) by a
majority vote of the Disinterested Directors (as hereinafter defined), if they
constitute a quorum of the Board of Directors; (B) by a written opinion of
Independent Counsel (as hereinafter defined) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or, even if
obtainable, a majority of such Disinterested Directors so directs; (C) by the
stockholders of the Corporation (but only if a majority of the Disinterested
Directors, if they constitute a quorum of the Board of Directors, presents the
issue of entitlement to indemnification to the stockholders for their
determination); or (D) as provided in Section 4(c).
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section
4(b)(ii), a majority of the Disinterested Directors shall select the
Independent Counsel, but only an Independent Counsel to which the Indemnitee
does not reasonably object. If no Independent Counsel is so selected to act
as provided in Section 4(b)(ii), the Indemnitee shall be entitled to seek
adjudication to indemnification in an appropriate court of the State of
Delaware or any other court of competent jurisdiction.
(c) Presumptions and Effect of Certain Proceedings. If the
person or persons empowered under Section 4(b) to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Corporation of the request
therefor together with the Supporting Documentation, the Indemnitee shall be
deemed to be entitled to indemnification and the Indemnitee shall be entitled
to such indemnification unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law.
The termination of any Proceeding described in Section 1, or of any claim,
issue or matter therein, by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, adversely
affect the right of the Indemnitee to indemnification or create a presumption
that the Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Corporation or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a
determination is made pursuant to Section 4(b) that the Indemnitee is not
entitled to indemnification under this Article IX, (A) the Indemnitee shall be
entitled to seek an adjudication of his entitlement to such indemnification
either, at the Indemnitee's sole option, in an appropriate court of the State
of Delaware or any other court of competent jurisdiction; (B) any such
judicial proceeding shall be de novo and the Indemnitee shall not be prejudiced
by reason of such adverse determination.
(ii) If a determination shall have been made or deemed to have
been made, pursuant to Section 4(b) or (c), that the Indemnitee is entitled to
indemnification, the Corporation shall be obligated to pay the amounts
constituting such indemnification within five days after such determination
has been made or deemed to have been made and shall be conclusively bound by
such determination unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law. In
the event that (x) advancement of expenses is not timely made pursuant to
Section 4(a) or (y) payment of indemnification is not made within five days
after a determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section 4(b) or (c), the Indemnitee shall
be entitled to seek judicial enforcement of the Corporation's obligation to pay
to the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Corporation may bring an action, in an
appropriate court in the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Corporation shall have the burden of
proving the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 4(d) that the
procedures and presumptions of this Article IX are not valid, binding and
enforceable and shall stipulate in any such court that the Corporation is
bound by all the provisions of this Article IX.
(iv) In the event that the Indemnitee, pursuant to this
Section 4(d), seeks a judicial adjudication to enforce his rights under, or to
recover damages for breach of, this Article IX, the Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any expenses actually and reasonably incurred by the
Indemnitee if the Indemnitee prevails in such judicial adjudication. If it
shall be determined in such judicial adjudication that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in connection with
such judicial adjudication shall be prorated accordingly.
(e) Definitions. For purposes of this Section 4: (i)
"Disinterested Director" means a director of the Corporation who is not or was
not a party to the Proceeding in respect of which indemnification is sought by
the Indemnitee;
(ii) "Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years has been,
retained to represent: (i) the Corporation or the Indemnitee in any matter
material to either such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification under this Article IX. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing under
the law of the State of Delaware, would have conflict of interest in
representing either the Corporation or the Indemnitee in an action to
determine the Indemnitee's rights under this Article IX.
Section 5. Severability. If any provision or provisions of
this Article IX shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article IX containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable, shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article IX
(including, without limitation, all portions of any sections of this Article
IX containing any such provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 6. Indemnification of Employees and Agents.
Notwithstanding any other provision or provisions of this Article IX, the
Corporation may indemnify (including, without limitation, by direct payment)
any person (other than a director or officer of the Corporation) who is or was
involved in any manner (including, without limitation, as a party or witness)
or is threatened to be made so involved in any Proceeding by reason of the fact
that such person is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan), against
any or all expenses (including attorneys' fees), judgments, fines amounts paid
in settlement incurred in connection with such Proceeding.
ARTICLE X
Miscellaneous
Section 1. Seal. The seal of the Corporation shall have
inscribed thereon the name of the Corporation, the year of its organization
and the state of its incorporation.
Section 2. Fiscal Year. The Fiscal Year of the Corporation
shall be determined by the Board of Directors.
ARTICLE XI
Amendments
The By-Laws may be altered, amended or repealed, from time to
time, by the Board of Directors by affirmative vote of a majority of the whole
Board of Directors, except such By-Laws as shall have been made from time to
time by holders of shares of capital stock entitled to vote therefor. The
By-Laws may be altered, amended or repealed at any annual or special meeting
of stockholders; provided, however, that notice of such proposed alteration,
amendment or repeal be included in the notice of such annual or special
meeting.
EXHIBIT 1.9
RESTATED CERTIFICATE OF INCORPORATION
OF
PRUDENTIAL SECURITIES INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED, a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Prudential Securities
Incorporated and the name under which the Corporation was originally
incorporated is Pru Holdings Inc. The date of filing its original Certificate
of Incorporation with the Secretary of State was March 19, 1981.
2. This Restated Certificate of Incorporation restates and
integrates and further amends the Restated Certificate of Incorporation of
this Corporation by revising the dividend rights of the Common Stock.
3. The text of the Certificate of Incorporation as amended
or supplemented heretofore is further amended hereby to read as herein set
forth is full:
ARTICLE I
NAME
The name of the Corporation is Prudential Securities
Incorporated.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street in the City
of Wilmington, County of New Castle. The name of the Corporation's registered
agent at such registered office is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares, Class and Series Authorized. The number of
shares of capital stock which the corporation shall have authority to issue is
2,000 shares of common stock of the par value of $1 each (hereinafter called
"Common Stock"), and 1,000 shares of preferred stock of the par value of $1
each (hereinafter called "Preferred Stock").
SECTION 2. Preferences and Rights of the Classes of Capital
Stock. The preferences and relative, participating optional or other special
rights, and qualifications, limitations or restrictions thereof, of the
capital stock are as follows:
(a) Except to the extent, if any, that a resolution of
the Board of Directors establishing a series of Preferred Stock gives voting
powers to the shares of such series, all voting powers shall be in the Common
Stock and the holders of Common Stock shall be entitled to one vote per share.
(b) No shares of capital stock shall have any
preemptive or other rights to purchase additional shares of capital stock of
any class or series or of any securities convertible into any such shares.
(c) The Preferred Stock may be issued from time to time
in one or more series with such designation for each such series as shall be
stated and expressed in the resolution or resolutions, of the Board of
Directors providing for the issue of such series. The Board of Directors in
any such resolution or resolutions is expressly authorized to state and
express for each such series:
(i) The voting powers, if any, of the holders of stock
of such series;
(ii) The rate per annum and the times at and conditions
upon which the holders of stock of such series shall be entitled to receive
dividends, and whether such dividends shall be cumulative or noncumulative and
if cumulative the terms upon which such dividends shall be cumulative;
(iii) The price or prices and the time or times at and
the manner in which the stock of such series shall be redeemable;
(iv) The rights to which the holders of stock of such
series shall be entitled upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(v) The terms, if any, upon which the stock of such
series shall be convertible into, or exchangeable for, stock of any other
class or classes or of any other series of the same or any other class or
classes, including the price of prices or the rate of rates of conversion or
exchange and the terms of adjustment, if any; and
(vi) Any other preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, in so far as they are not inconsistent with the
provisions of the Certificate of Incorporation, as restated, and to the full
extent now or hereafter permitted by the laws of the State of Delaware.
(d) All shares of Preferred Stock of any one series
shall be identical to each other in all respects, except that shares of any
one series issued at different times may differ as to the dates from which
dividends thereon, if cumulative, shall be cumulative.
(e) While any Preferred Stock is outstanding, no
dividend shall be paid or declared and no distribution shall be made on the
Common Stock, other than a dividend payable in Common Stock, unless (i) all
dividends on the Preferred Stock accrued for all past quarterly or longer
specified dividend periods and for the current quarterly or longer specified
dividend period shall have been paid or declared and provided for and (ii) all
past sinking fund payments, if any, due with respect to all series of the
Preferred Stock shall have been complied with. In addition, no dividend shall
be declared or paid which shall impair the capital of the Corporation nor
shall any distribution of assets be made to any stockholder unless the value
of the assets of the Corporation remaining after such payment or distribution
is at least equal to the aggregate of its debts and liabilities, including
capital. The Board of Directors may declare and pay dividends and make
distributions on the Common Stock from time to time as provided by law,
subject to the foregoing.
(f) In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of Preferred Stock shall be
entitled to receive out of the assets of the Corporation, remaining after
paying or providing for all liabilities, before any distribution or payment
shall be made to the holders of Common Stock, the amount or amounts fixed for
each outstanding series of Preferred Stock in the resolution or resolutions of
the Board of Directors establishing such series, and all remaining assets
shall be distributed pro rata among the holders of Common Stock.
SECTION 3. Series A Preferred Stock.
I. Designation and Amount. The first series of the
Preferred Stock of this Corporation authorized by its Restated Certificate of
Incorporation shall be designated as Series A Preferred Stock, par value $1 per
share (hereinafter referred to as the Series A Preferred Stock), and 100
shares of the authorized but heretofore unissued shares of such Preferred
Stock shall, upon resolution of the Board of Directors, be issued as shares of
the Series A Preferred Stock.
II. Voting Rights. Except as otherwise expressly
required by law, the Series A Preferred Stock shall have no voting rights.
III. Dividend Rights. (a) The dividend rate on the
Series A Preferred Stock shall be $0.01 per share per annum, payable annually
on the thirty-first day of May in each year. Dividends on shares of Series A
Preferred Stock shall not be cumulative.
(b) The holders of the Series A Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors, out of
the assets of this Corporation legally available therefor, non-cumulative
dividends at the rate per annum set forth above, and no more, payable on the
date set forth above to holders of record on the date not exceeding 50 days
preceding the date of such payment, fixed for the purpose by the Board of
Directors in advance of such payment.
(c) No dividends shall be declared or paid or set apart
for payment on shares of any series of Preferred Stock ranking on a parity
with the Series A Preferred Stock as to dividends unless full dividends
contemporaneously are declared and paid or declared and a sum sufficient
therefor set apart for such payment on all of the outstanding Series A
Preferred Stock for the dividend period terminating on the date of payment of
such dividend. When dividends are not paid in full on the shares of Series
A Preferred Stock and on all series of Preferred Stock on a parity with the
Series A Preferred Stock, any dividend payments on such series shall be paid
to holders of shares of all such series shall be paid to holders of shares of
all such series ratably in proportion to the respective sums which such
holders would receive if all dividends thereon were declared and paid in full.
IV. Redemption. (a) This Corporation shall have the
right to redeem the shares of Series A Preferred Stock at any time on and
after the date such shares shall have been issued (the "Redemption Date"),
either in whole or in part, at the price of $390,000 per share.
(b) In the event that less than all of the outstanding
shares of Series A Preferred Stock are to be redeemed, the number of shares to
be redeemed shall be determined by the Board of Directors and the shares to be
redeemed shall be determined by lot or pro rata as may be determined by the
Board of Directors or by such other method as may be approved by the Board of
Directors as fair and equitable.
(c) Notice of redemption of shares of Series A
Preferred Stock, specifying the time and place of redemption, shall be mailed
to each holder of record of the shares to be redeemed, at his address of
record, not more than 10 days nor less than 2 days prior to the Redemption
Date; if less than all the shares owned by such stockholders are then to be
redeemed, the notice shall also specify the number of shares thereof which are
to be redeemed.
(d) Unless default be made in the payment of the
redemption price, all rights of the holders of such shares as stockholders of
this Corporation by reason of the ownership of such shares, shall cease on the
Redemption Date, except the right to receive the amount payable upon
redemption of such shares, on presentation and surrender of the respective
certificates representing such shares, and such shares shall not after the
Redemption Date be deemed to be outstanding. In case less than all the shares
represented by any such certificates are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
V. Liquidation Rights. (a) Upon the dissolution,
liquidation or winding up (whether voluntary or involuntary) of this
Corporation, the holders of the shares of Series A Preferred Stock shall be
entitled to receive out of the assets of this Corporation, before any payment
or distribution shall be made on the Common Stock or on any other class or
series of stock ranking junior to the Series A Preferred Stock as to assets,
in cash, the amount of $390,000 per share.
(b) The sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the property and assets of this Corporation shall be
deemed a voluntary dissolution, liquidation or winding up of this Corporation
for the purposes of this Section IV, but the merger or consolidation of this
Corporation into or with any other corporation or merger or consolidation of
any other corporation into or with the Corporation, shall not be deemed to be
a dissolution, liquidation or winding up, whether voluntary or involuntary,
for the purposes of this Section IV.
(c) After the payment to the holders of the Series A
Preferred Stock of the full preferential amounts aforesaid, the holders of the
Series A Preferred Stock as such shall have no right or claim to any of the
remaining assets of this Corporation.
(d) If the assets distributable on such dissolution,
liquidation or winding up, whether voluntary or involuntary, which are
available for distribution to the holders of the Series A Preferred Stock,
shall be insufficient to permit the payment to such holders of the full
preferential amounts to which they are entitled, such assets or the proceeds
thereof shall be distributed among such holders ratably.
VI. Other Series of the Preferred Stock. So long as any
shares of the Series A Preferred stock remain outstanding, this Corporation
shall have the right, without the consent of the holders of any of such
outstanding shares, to create any series of the Preferred Stock ranking
senior, as to the right to receive assets in liquidation or the right to
receive dividends, to the Series A Preferred Stock.
SECTION 4. Series B Preferred Stock.
1. Designation and Amount. The second series of the
Preferred Stock of this Corporation authorized by its Restated Certificate of
Incorporation shall be designated as Series B Preferred Stock, par value $1.00
per share (hereinafter referred to as the Series B Preferred Stock), and 100
shares of the authorized but heretofore unissued shares of such Preferred
Stock shall, upon resolution of the Board of Directors, be issued as shares of
the Series B Preferred Stock.
II. Voting Rights. Except as otherwise expressly required by
law, the Series B Preferred Stock shall have no voting rights.
III. Dividend Rights. (a) The dividend rate on the Series B
Preferred Stock shall be Prudential Funding Corporation's announced monthly
lending rate of interest charged for loans to finance equity investments in
affiliated companies, payable monthly on the sixth business day of each month.
Dividends on shares of Series B Preferred Stock shall be cumulative.
(b) The holders of the Series B Preferred shall be
entitled to receive, when and as declared by the Board of Directors, out of
the assets of this Corporation legally available therefor, cumulative
dividends at the rate per annum set forth above, and no more, payable on the
date set forth above to holders of record on the date not exceeding 50 days
preceding the date for such payment, fixed for the purpose by the Board of
Directors in advance of such payment.
(c) No dividends shall be declared or paid or set apart
for payment on shares of any series of Preferred Stock ranking on a parity
with the Series B Preferred Stock as to dividends unless full dividends
contemporaneously are declared and paid or declared and a sum sufficient
therefore set apart such payment on all of the outstanding Series B Preferred
Stock for the dividend period terminating on the date of payment of such
dividend. When dividends are not paid in full on the shares of Series B
Preferred Stock and on all series of Preferred Stock on a parity with the
Series B Preferred Stock, any dividend payments on such series shall be paid
to the holders of shares of all such series ratably in proportion to the
respective sums which such holders would receive if all dividends thereon were
declared and paid in full.
IV. Liquidation Rights. (a) Upon the dissolution,
liquidation or winding up (whether voluntary or involuntary) of this
Corporation, the holders of the shares of Series B Preferred Stock shall be
entitled to receive out of the assets of this Corporation, before any payment
or distribution shall be made on the Common Stock or any other class or series
of stock ranking junior to the Series B Preferred Stock as to assets, in cash,
the amount of $10 million per share plus dividends accrued or in arrears.
(b) The sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the property and assets of this Corporation shall be
deemed a voluntary dissolution, liquidation or winding up of this Corporation
for the purposes of this Section IV, but the merger or consolidation of this
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with this Corporation, shall not be deemed to
be a dissolution, liquidation or winding up, whether voluntary or involuntary,
for the purposes of this Section IV.
(c) After the payment to the holders of the Series B
Preferred Stock of the full preferential amounts aforesaid, the holders of the
Series B Preferred Stock as such shall have no right or claim to any of the
remaining assets of this Corporation.
(d) If the assets distributable on such dissolution,
liquidation or winding up, whether voluntary or involuntary, which are
available for distribution to the holders of the Series B Preferred Stock,
shall be insufficient to permit the payment to such holders of the full
preferential amounts to which they are entitled, such assets or the proceeds
thereof shall be distributed among such holders ratably.
V. Other Series of the Preferred Stock. So long as any
shares of the Series B Preferred Stock remain outstanding, this Corporation
shall have the right, without the consent of the holders of any of such
outstanding shares, to create any series of the Preferred Stock ranking
senior, as to the right to receive assets in liquidation or the right to
receive dividends, to the Series B Preferred Stock. The Series B Preferred
Stock shall rank on a parity as to dividend and liquidation rights with the
Series A Preferred Stock.
ARTICLE V
RIGHT OF CORPORATION TO PURCHASE SHARES OF COMMON STOCK
FROM HOLDERS THEREOF
SECTION 1. When Rights Arise. All shares of Common Stock
shall be held subject to the conditions and restrictions set forth in this
Certificate of Incorporation, the provisions of which apply equally to
original holders and to transferees, and each holder of Common Stock by
acceptance of a stock certificate therefor agrees with the Corporation and
with each other holder of Common Stock, in consideration of such agreement by
each such other holder, to such conditions and restrictions, including the
following:
(a) In the event any holder who is required to be
approved by the constitution or rules of the New York Stock Exchange, Inc. or
any other securities exchange, board of trade, commodities exchange, clearing
corporation or association, or similar institution on which the Corporation
has membership privileges (collectively referred to as the "Exchange") fails
or ceases to be so approved, the Corporation shall have the right and option
to purchase or convert to a fixed income security such number of shares of
Common Stock from such holder as is necessary to reduce the number of shares
of voting stock owned by such holder to one share below the level requiring
such approval, such right of purchase or purchase or conversion to be for a
period of 45 days from the date on which the Corporation first becomes aware
of the fact that such holder has failed or ceased to be so approved.
(b) In the event that any parent of the Corporation
within the meaning of the constitution and rules of the Exchange fails or
ceases to satisfy the requirements of such constitution or rules with respect
to a parent, the Corporation shall have the right and option to purchase or
convert to a fixed income security such number of shares of Common Stock from
such parent as is necessary to reduce the number of shares of voting stock
owned by such parent below the level which enables such parent to exercise a
controlling influence over the management or policies of the Corporation, such
right of purchase or conversion to be for a period of 45 days from the date on
which the Corporation was advised that such parent ceased to satisfy such
constitution or rules.
(c) In the event that any holder required to be
approved by the constitution and rules of the Exchange proposes to sell or
otherwise dispose of his shares of Common Stock, such holder shall notify the
Corporation in writing to that effect, stating the number of shares proposed
to be sold or otherwise disposed of, the name of the proposed purchaser or
transferee, and the proposed sale price; and the Corporation shall have the
right and option for 10 days after such notice to purchase all or any part of
the shares so proposed to be sold, or if such holder fails to give such
notice, the Corporation shall have the same right of purchases exercisable
against the transferee for 10 days after it first is aware of any such sale of
shares by such beneficial owner.
SECTION 2. Consideration to be Paid and Method of Exercising
the Corporation's Right to Purchase. The consideration to be paid for shares
of Common Stock and the method of exercising any right or option to purchase
such shares pursuant to Article V shall be determined by the Board or
Directors. Any dispute concerning the consideration for the Common Stock or
method or exercising the right to purchase the Common Stock shall be submitted
for arbitration to the New York Stock Exchange, Inc.
ARTICLE VI
POWERS OF BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized:
(a) Except as otherwise provided in the bylaws of the
Corporation adopted by the incorporators, stockholders or Board of Directors,
to make, alter, amend or repeal the bylaws of the Corporation. Any bylaw made
by the incorporators, stockholders or Board of Directors may be altered,
amended or repealed by the holders of Common Stock at any annual meeting or at
any special meeting called for the purpose, but only upon obtaining the vote
provided for in the bylaws.
(b) To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus
and net profits of the Corporation, including the required amount of working
capital, and to set apart out of any funds of the Corporation, whether or not
available for dividends, such reserve or reserves as is deemed necessary for
any proper purpose and to reduce or abolish any such reserve.
(d) To designate, by resolution passed by a majority of
the whole Board of Directors, one or more committees consisting of two or more
directors, which, to the extent provided in the resolution designating the
committee or in the bylaws, shall have and may exercise the powers of the
Board in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; and to designate, by resolution passed by a majority of the whole
Board, one or more committees consisting of one or more directors and one or
more persons who are not directors, which shall have such advisory functions
as the Board may determine. Such committee or committees shall have such name
or names as may be provided in the bylaws or as may be determined from time to
time by resolution of the Board of Directors.
(e) To adopt pension, profit sharing or retirement
plans or arrangements. No such plan, which is not at the time of adoption
unreasonable or unfair, shall be invalidated or in any way affected because
any director shall be a beneficiary thereunder or shall vote for any plan
under which he may benefit.
(f) To exercise, in addition to the powers and
authorities hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the State
of Delaware and of this Certificate of Incorporation and to the bylaws.
ARTICLE VII
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
ARTICLE VIII
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION AND ITS
CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the date of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
applicable of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustee in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors, or class of creditors and/or
on all stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
4. This Restated Certificate of Incorporation was duly
adopted by written consent of the stockholders in accordance with the
applicable provisions of Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware and written notice of the adoption of this
Restated Certificate of Incorporation has been given as provided by Section
228 of the General Corporation Law of the State of Delaware to every
stockholder entitled to such notice.
IN WITNESS WHEREOF, said Prudential Securities Incorporated,
has cause this Certificate to be signed by Nathalie P. Maio, its Senior Vice
President, and attested to by Kathleen B. Maguire, its Assistant Secretary,
this 25th day March, 1993.
PRUDENTIAL SECURITIES INCORPORATED
By; /s/ Nathalie P. Maio
Nathalie P. Maio
Senior Vice President
ATTEST:
By: /s/ Kathleen B. Maguire
Kathleen B. Maguire
Assistant Secretary
EXHIBIT 1.10
PRUDENTIAL SECURITIES INCORPORATED
____________________________________________
REVISED BYLAWS
As amended through March 25, 1996
TABLE OF CONTENTS
ARTICLE I
STOCKHOLDERS
SECTION 1. Annual Meetings.............................. 1
SECTION 2. Special Meetings............................. 1
SECTION 3. Notice; Waiver of Notice..................... 1
SECTION 4. Quorum and Manner of Acting.................. 1
SECTION 5. Organization................................. 2
SECTION 6. Voting; Proxies.............................. 2
SECTION 7. Record Dates................................. 2
SECTION 8. Appointment of Members of Operating
Committee.................................... 2
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Power................................ 3
SECTION 2. Number; Qualification; Term of
Office; Vacancies............................ 3
SECTION 3. Meetings; Notice; Waiver of Notice........... 3
SECTION 4. Quorum and Manner of Acting.................. 4
SECTION 5. Organization................................. 4
ARTICLE III
COMMITTEES
SECTION 1. Operating Committee.......................... 4
SECTION 2. Compensation Committee....................... 5
SECTION 3. Other Committees............................. 5
SECTION 4. Removal and Change of Members; Term
of Office.................................... 5
SECTION 5. Meetings; Notice; Quorum, Manner of
Acting....................................... 6
SECTION 6. Audit Committee.............................. 6
ARTICLE IV
OFFICERS
SECTION 1. Election; Qualification; Term of
Office; Bonds................................ 7
SECTION 2. Chief Executive Officer...................... 8
SECTION 3. President.................................... 8
SECTION 4. Vice Chairman of the Board of
Directors.................................... 9
SECTION 5. Chairman of the Operating
Committee.................................... 9
SECTION 6. Vice Chairman of the Operating
Committee.................................... 9
SECTION 7. Executive Vice Presidents, Senior
Vice Presidents, Managing Directors,
Associate Directors, First Vice
Presidents and Other Vice Presidents......... 10
SECTION 8. Secretary.................................... 10
SECTION 9. Chief Financial Officer...................... 10
SECTION 10. Other Officers............................... 11
SECTION 11. Voting Stock or Other Securities in
Other Corporations........................... 11
SECTION 12. Assistant Secretaries........................ 11
SECTION 13. The Treasurer................................ 12
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS OF STOCK
SECTION 1. Stock Certificates........................... 15
SECTION 2. Transfers of Stock........................... 16
SECTION 3. Lost Stock Certificates...................... 16
ARTICLE VII
CONTRACTS, CHECKS, NOTES ETC
SECTION 1. Contracts.................................... 16
SECTION 2. Checks, Notes, Drafts, Acceptances
etc.......................................... 16
ARTICLE VIII
GENERAL
SECTION 1. Fiscal Year.................................. 17
SECTION 2. Seal......................................... 17
SECTION 3. Offices...................................... 17
SECTION 4. References................................... 17
ARTICLE IX
AMENDMENTS
PRUDENTIAL SECURITIES INCORPORATED
BYLAWS
ARTICLE I
STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business
as may properly come before such meeting shall be held each year on such date,
and at such time and place within or without the State of Delaware, as may be
designated by the Board of Directors.
SECTION 2. Special Meetings. Special meetings of stockholders may
be held upon the call of the Board of Directors or the Operating Committee, at
such time and at such place within or without the State of Delaware as may be
stated in the call and notice. A special meeting of stockholders shall be
called by the Secretary upon the written request, stating the purpose of the
meeting, of the holders of Common Stock who together own of record 25% of the
outstanding shares of Common Stock.
SECTION 3. Notice; Waiver of Notice. Except as otherwise herein
provided, notice of the time, place and purposes of every meeting of
stockholders shall be delivered personally or mailed at least ten days prior
to such meeting to each stockholder of record entitled to vote at the meeting
at his last known post office address. Such further notice shall be given as
may be required by law. Any meeting may be held without notice if notice
thereof is waived in writing, whether before or after such meeting, by all
stockholders entitled to vote thereat.
SECTION 4. Quorum and Manner of Acting. At every meeting of
stockholders the holders of record of a majority of the outstanding shares
entitled to vote at the meeting, whether present in person or by proxy, shall,
except as otherwise provided by law or by the Certificate of Incorporation or
these Bylaws, constitute a quorum. If at any meeting there shall be no
quorum, the holders of record, entitled to vote, of a majority of such shares
so present or represented may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall have been
obtained, when any business may be transacted which might have been transacted
at the meeting as first convened had there been a quorum. At each meeting of
stockholders for the election of directors, the voting for directors shall be
by ballot unless the holders of record of a majority of the shares of Common
Stock present in person or represented by proxy at such meeting shall
otherwise determine. At all elections of directors a plurality of the votes
cast thereat shall elect. All other elections and questions shall, unless
provided by law or by the Certificate of Incorporation or these Bylaws, be
decided by the vote of the holders of a majority of the shares present in
person or by proxy at the meeting and entitled to vote at the election or on
the question, provided, however, that except as otherwise provided by law or
by the Certificate of Incorporation, the Board of Directors may require a
larger vote upon any question.
SECTION 5. Organization. Meetings of the stockholders shall be
presided over by the Chief Executive Officer, or in his absence by the
President, or in their absence by a Vice Chairman of the Board designated by
the Chief Executive Officer, or in their absence of the foregoing persons by a
chairman chosen at the meeting. The Secretary of the Corporation shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person present to act as secretary of the meeting.
SECTION 6. Voting; Proxies. Each stockholder entitled to vote at
any meeting shall have one vote in person or by proxy for each share of stock
held by him which has voting power upon the matter in question. Every such
proxy shall apply only to the specific meeting for which it is issued or any
adjournment thereof, but no proxy shall be voted after three years from its
date, unless such proxy provides for a longer period.
SECTION 7. Record Dates. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance a record date, which shall not be more than sixty nor less that ten
days before the date of such meeting, nor more than sixty days prior to any
action.
SECTION 8. Appointment of Members of Operating Committee. Between
meetings of the Board of Directors, the stockholders may appoint new members
to the Operating Committee of the Board of Directors.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Power. The business of the Corporation shall be
managed by its Board of Directors, subject, however, to the Certificate of
Incorporation.
SECTION 2. Number; Qualification; Term of Office; Vacancies. The
number of directors of the Corporation shall be not less than 4 nor more than
15, as fixed from time to time by vote of a majority of the whole Board of
Directors, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office.
Directors shall hold office until the annual meeting of stockholders next
succeeding their election and until their successors shall have been elected
and qualified or until their earlier resignation or removal, provided that the
holders of Common Stock may, at a duly convened meeting, by a vote of a
majority of the Common Stock then outstanding, remove any director from office
whether or not such removal is for cause. Whenever any vacancy shall occur in
the Board of Directors, by death, resignation, or otherwise, or the number of
directors shall be increased within the limits set forth above, such vacancy
may be filled, or the additional directors may be elected, either by the vote
of a majority of the directors then in office or by the vote of a plurality of
the votes cast at a meeting of the holders of Common Stock. Any director may
resign at any time upon written notice to the Board of Directors or to the
Chief Executive Officer or the Secretary of the Corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein, no acceptance of such resignation shall be necessary to make it
effective.
SECTION 3. Meetings; Notice; Waiver of Notice. Regular meetings of
the Board of Directors shall be held at such time and place within or without
the State of Delaware as may from time to time be fixed by resolution of the
Board. Notice of regular meetings of the Board need not be given. Special
meetings of the Board may be held at any time, upon call of the Chief
Executive Officer, or the President, or a Vice Chairman of the Board, or the
Chairman of the Operating Committee, by oral, telegraphic or written notice
specifying the time, place and purposes of the meetings, given or mailed to
each director not less than one day before the meeting. Meetings may be held
at any time without notice if all the directors are present or if those not
present waive notice in writing or by telegram, before of after any such
meeting.
SECTION 4. Quorum and Manner of Acting. The greater of three or a
majority of the whole Board of Directors shall constitute a quorum for the
transaction of business at any meeting of the Board, but if at any meeting
there shall be less than a quorum present, the directors present may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present, whereupon any business may be
transacted which might have been transacted at the meeting as first convened
had there been a quorum. Except as otherwise provided by law or by the
Certificate of Incorporation or these Bylaws, the act of a majority of a
quorum of the directors present at any meeting shall be the act of the Board.
The Board shall have power to take action by unanimous written consent without
holding a meeting.
SECTION 5. Organization. Meetings of the Board of Directors shall
be presided over by the Chief Executive Officer, or in his absence by the
President, or in their absence by a Vice Chairman of the Board designated by
the Chief Executive Officer, or in their absence by the Chairman of the
Operating Committee, or in the absence of the foregoing persons by a chairman
chosen at the meeting. The Secretary of the Corporation shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person present to act as secretary of the meeting.
ARTICLE III
COMMITTEES
SECTION 1. Operating Committee. The Board of Directors may appoint
an Operating Committee consisting of as many members as shall be determined
from time to time. The Operating Committee shall have and may exercise, during
intervals between meetings of the Board, all powers of the Board in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
provided, however, that the Operating Committee shall have no power to amend
the Bylaws, authorize the issuance of any stock of the Corporation, amend the
Certificate of Incorporation, adopt an agreement of merger, or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, or recommend to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution of the Corporation. The Operating Committee shall have the power
to declare dividends on any stock of the Corporation. Meetings of the
Operating Committee shall be presided over by the Chairman of the Operating
Committee, or in his absence by a Vice Chairman of the Operating Committee
designated by the Chief Executive Officer, or their absence by the Chief
Executive Officer, or in the absence of the foregoing persons by a member of
the Operating Committee chosen at the meeting. The Operating Committee shall
have power to take action by unanimous written consent without holding a
meeting. The Secretary of the Corporation shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
SECTION 2. Compensation Committee. The Board of Directors may, by
vote of a majority of the whole Board, designate a Compensation Committee
consisting of as many directors as shall be determined from time to time. The
Compensation Committee shall fix, from time to time, the compensation policies
of the Corporation and establish all pay practices for all officers and
employees. The Board of Directors shall designate the Chairman of the
Compensation Committee and the Compensation Committee shall designate a person
as secretary. The Compensation Committee shall have the power to take action
by unanimous written consent without holding a meeting. Meetings of the
Compensation Committee shall be presided over by the Chairman of the
Compensation Committee, or in his absence by the Chief Executive Officer, or
in the absence of the foregoing persons, by a member of the Compensation
Committee chosen at the meeting.
SECTION 3. Other Committees. The Board of Directors, by vote of a
majority of the whole Board, may appoint such other committees, which may
include as members only directors, or directors and non-directors, as the
Board may from time to time consider desirable, and such committees shall have
such advisory functions as the Board may properly determine.
SECTION 4. Removal and Change of Members; Term of Office. The Board
of Directors at any time, by vote of a majority of the whole Board, may remove
any member of any committee (but, in the case of any person serving as a
member of any committee by virtue of holding another office, only by removal
from such other office), may change the number of members of any committee
within any limits prescribed by the Bylaws, and may appoint persons to fill
vacancies on any committee. Members of a committee shall hold office until
their successors are appointed or until their earlier resignation or removal.
SECTION 5. Meetings; Notice; Quorum, Manner of Acting. Meetings of
a committee shall be held at such place within or without the State of
Delaware as may from time to time be determined by the Board of Directors or
the committee, and no notice of a regular meeting of such committee, the date
of which has been fixed by resolution either of the Board or the committee,
shall be required. Special meetings of any committee shall be called by
notice given by the secretary of the committee upon request of any member
thereof. Any such notice shall be oral, by telegram or in writing, shall
specify the time, place and purpose of the meeting, and shall be given or
mailed to each member not less than one day before the meeting. Notices of
any meeting may be waived in the manner provided herein for the waiver of
notices of meetings of the Board. The greater of three or a majority of the
Operating Committee which numbers may include ex officio members, shall
constitute a quorum for the transaction of business. A majority of the
members of each other committee, which majority may include ex officio
members, shall constitute a quorum for the transaction of committee business,
and the act of a majority of a quorum at any meeting shall be the act of the
committee. Except as otherwise provided in the Bylaws or in the resolution
establishing a committee, each committee shall elect its own chairman.
SECTION 6. Audit Committee. The Board of Directors, by vote or a
majority of the whole Board, may appoint an Audit Committee consisting of not
less than three nor more than five directors, which shall from time to time
meet with the Independent auditors selected by the Board of Directors, to
review the scope of their audit: the corporate accounting practices, policies
and principles; review with the independent auditors their final report;
review with internal and independent auditors overall accounting and financial
controls; and to be available to the independent auditors during the year for
consultation purposes. The Audit Committee shall also recommend to the Board
of Directors the independent auditors to be selected subject to the
ratification and approval of the stockholders.
***
ARTICLE IV
OFFICERS
***
SECTION 1. Election; Qualification; Term of Office; Bonds. The
Board of Directors shall elect a Chief Executive Officer and a Secretary. The
Board of Directors may elect one or more Vice Chairman of the Board, a
Chairman of the Operating Committee, a President, one or more Executive Vice
Presidents, one or more other Vice Presidents (to any of whom it may give such
further designation other than divisional officer designations, as it
considers desirable), one or more Managing Directors, one or more Associate
Directors, a Chief Financial Officer, and one or more Assistant Secretaries.
The Chief Executive Officer, President, Vice Chairman, and Chairman of the
Operating Committee shall be chosen from among the directors. If and to the
extent required by any securities exchange, board of trade, commodities
exchange, clearing corporation or association or similar institution in which
the Corporation has membership privileges, the officers shall each be the
record owner of Common Stock of the Corporation. Each officer shall hold
office until his or her successor has been elected and qualified or until his
or her earlier resignation, termination from employment (unless the board of
directors determines that special circumstances warrant otherwise) or removal
from office. Any officer may be removed from office at any time by the vote
of a majority of the whole Board. Upon the removal, death or resignation of
any officer, the Board shall elect a successor if the vacancy is in any office
required to be filled by the Board and may elect a successor if the vacancy is
in an office which may be filled at the Board's discretion. The Board may
require the Chief Financial Officer or any other officer, agent or employee,
including but not limited to those on whom each officer who is a member of the
Board of Directors confers titles pursuant to the next sentence, to give bond
for the faithful performance of their duties in such sum and of such character
as the Board may from time to time prescribe. Each officer who is a member of
the Board of Directors may confer on specified employees who are employed
within his division titles and limited powers as divisional officers including
but not limited to the title of President of the Administrative Group,
President of the Capital Markets Group, President of the International and
Commodities Group, President of the Investment Management Group, President of
the Merchant Banking Group, President of the Retail Group, Executive Vice
President--Investments, Senior Vice President--Investments, First Vice
President--Investments, Vice President--Investments, Associate Vice
President--Investments, Assistant Vice President, Associate Vice President and
Assistant Treasurer, but such persons shall not be authorized to exercise the
powers of officers of the Corporation. Each officer who is a member of the
Board of Directors may at any time terminate any title so conferred. Any
divisional title conferred under this section shall automatically terminate
upon the employee's cessation of employment by the Corporation if such title
has not been terminated previously in the manner described above.
SECTION 2. Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation. The Chief Executive
Officer shall make recommendations to the Board in all areas of corporate and
business activities and shall plan, direct, coordinate and supervise the
Corporation's activities and shall have the general authority to exercise the
powers necessary therefor, all in accordance with policies established by the
Board and subject to its control. The Chief Executive Officer shall be a
voting member ex officio of each committee established by the Board and when
present he shall preside as chairman at all meetings of stockholders and of
the Board. He shall have general authority to execute bonds, deed and
contracts in the name and on behalf of the Corporation and shall perform such
other duties as may from time to time be prescribed for and assigned to him by
the Board of these Bylaws. In the absence of the Chairman of the Operating
Committee and a Vice Chairman of the Operating Committee designated by the
Chief Executive Officer, the Chief Executive Officer shall preside at meetings
of the Operating Committee, and in the absence of the foregoing persons, a
member of the Operating Committee chosen at the meeting shall preside. In the
absence of the Chief Executive Officer, except as otherwise provided by the
Bylaws, the President shall perform the duties of the Chief Executive Officer,
or in the absence of both the Chief Executive Officer and the President, their
duties shall be performed by such officer or officers as may be designated by
the Board or the Operating Committee.
SECTION 3. President. The President shall implement the general
directions and plans promulgated by the Board of Directors or the Operating
Committee or the Chief Executive Officer pursuant to these Bylaws and in
general shall have the authority to exercise the powers delegated to him in
connection therewith. The President shall review the important policies and
practices of the Corporation as in effect from time to time and recommend to
the Board or to the Operating Committee or to the Chief Executive Officer any
changes therein or new policies and practices which he considers advisable.
The President shall be a voting member ex officio of each committee
established by the Board and shall have general authority to execute bonds,
deeds and contracts in the name and on behalf of the Corporation. In the
absence of the Chief Executive Officer, the President shall preside at
meetings of stockholders and of the Board. In the absence of the President,
except as otherwise provided in these Bylaws, his duties shall be performed by
such officer as may be designated by the Chief Executive Officer, by the Board
or by the Operating Committee.
SECTION 4. Vice Chairman of the Board of Directors. Each Vice
Chairman of the Board of Directors shall have general authority to execute
bonds, deeds and contracts in the name and on behalf of the Corporation, and
shall perform such other duties as may, from time to time, be prescribed for
and assigned to him by the Board or the Operating Committee. A Vice Chairman
of the Board, designated by the Chief Executive Officer, shall preside at
meetings of the stockholders and of the Board at which the Chief Executive
Officer and the President are absent.
SECTION 5. Chairman of the Operating Committee. The Chairman of the
Operating Committee shall be a voting member ex officio of each committee
established by the Board of Directors, shall preside at meetings of the
Operating Committee, and shall, if he considers it advisable, recommend to the
Operating Committee new or changed policies and procedures with respect to the
conduct of the business. In the absence of the Chief Executive Officer, the
President and a Vice Chairman of the Board designated by the Chief Executive
Officer, the Chairman of the Operating Committee shall preside at meetings of
the stockholders and of the Board, and in the absence of the foregoing
persons, a chairman chosen at the meeting shall preside. He shall have
general authority to execute bonds, deeds, and contracts in the name and on
behalf of the Corporation, and shall perform such other duties as may from
time to time be prescribed for and assigned to him by the Board or the
Operating Committee.
SECTION 6. Vice Chairman of the Operating Committee. Each of the
Vice Chairmen of the Operating Committee shall have duties as may, from time
to time, be prescribed for and assigned to them by the Board of Directors of
the Operating Committee. In the absence of the Chairman of the Operating
Committee, a Vice Chairman of the Operating Committee designated by the Chief
Executive Officer shall preside at meetings of the Operating Committee.
SECTION 7. Executive Vice Presidents, Senior Vice Presidents,
Managing Directors, Associate Directors, First Vice Presidents and Other Vice
Presidents. These officers shall perform such duties and have such powers as
may, from time to time, be prescribed for and assigned to them, respectively,
by the Board or the Operating Committee.
SECTION 8. Secretary. The Secretary shall attend to the giving of
notice of, prepare the agenda and procedures for, and keep the minutes of all
meetings of the stockholders and of the Board of Directors and, except as
otherwise provided in these Bylaws or in resolutions of the Board, of the
various committees of the Board, of the various committees of the Board which
these Bylaws require or permit the Board to appoint. The Secretary shall have
charge of the corporate seal and shall have the authority to attest any and
all instruments or writings to which the same be affixed. The Secretary shall
maintain and have custody of the stock ledger of the Corporation and the
related records pertaining to the issuance and transfer of stock of the
Corporation, and he shall maintain and have custody of all other books,
documents, papers and records of the Corporation except those for which some
other officer or agent is properly accountable. The Secretary shall generally
perform all the duties usually pertaining to the office of secretary of a
corporation, and shall perform such additional duties and have such additional
powers as may, from time to time, be assigned to him by Board or the Operating
Committee. Except as otherwise provided in the Bylaws, in the absence of the
Secretary, such person as shall be designated by the Board of the Operating
Committee shall perform his duties.
SECTION 9. Chief Financial Officer. The Chief Financial Officer
shall have the care and custody of all funds of the Corporation except those
for which some other officer or agent is properly accountable and shall
deposit the same in such banks or other depositories as the Board of Directors,
or any officer or officers, or any officer and agent jointly thereunder duly
authorized by the Board, shall from time to time, direct or approve. He shall
keep a full and accurate record of all monies received and paid on account of
the Corporation except as to those for which some other officer or agent is
properly accountable and shall render a statement of his account whenever the
Board shall require. He shall be charged with the preparation of financial
statements and reports, the maintenance of records of authorized
appropriations and the determination of expenditures applicable thereto, the
ascertainment that financial transactions covered by minutes of the Board of
Directors and Operating Committee are properly executed and reported, with the
maintenance of records of bank deposits, cash receipts and cash disbursements,
with the proper disbursement of amounts due vendors for authorized
expenditures, the preparation of payroll records and the computation of
amounts due under compensation agreements, the installation and supervision of
the general accounting records, and the maintenance of adequate records of all
contracts and leases. He shall perform such other duties and have such
additional powers as may, from time to time, be assigned to him by the Board
or the Operating Committee. When required by the Board, he shall give bonds
for the faithful discharge of his duties in such sums and with such sureties
as Board shall approve. In the absence of the Chief Financial Officer, the
Treasurer or such other person as shall be designated by the Board, the
Operating Committee, the Chief Executive Officer or the President shall
perform his duties.
SECTION 10. Other Officers. Except as otherwise provided in these
Bylaws, the other officers, agents and employees of the Corporation shall have
such powers and duties as may be delegated to them, respectively, by the Board
or the Operating Committee.
SECTION 11. Voting Stock or Other Securities in Other Corporations.
The Chief Executive Officer, the President, a Vice Chairman of the Board, the
Chairman of the Operating Committee, any Vice President, the Secretary and the
Chief Financial Officer shall each have full power and authority on behalf of
the Corporation to execute and deliver a proxy or proxies for, or to attend
and vote at, any meeting of, or to execute and deliver any consents or votes
without meeting, requested from stockholders or holders of other securities of
any corporation in which the Corporation may hold stock or other securities,
and at any such meeting may exercise all rights incident to the ownership of
such stock which the Corporation might exercise if it were present. The Board
may from time to time confer like powers upon any other person or persons.
SECTION 12. Assistant Secretaries. In the absence of the Secretary,
an Assistant Secretary or such other person designated by the Board of
Directors or the Operating Committee shall perform all the duties of the
Secretary and, when so acting, shall have all the powers of and be subject to
all restrictions upon the Secretary. Each Assistant Secretary shall have such
other powers and perform such other duties as may from time to time be
prescribed by the Board of Directors or the Operating Committee.
SECTION 13. The Treasurer. In the absence of the Chief Financial
Officer, the Treasurer or such other person as shall be designated by the
Board of Directors, Operating Committee, Chief Executive Officer or the
President shall perform the duties of the Chief Financial Officer and when so
acting, shall have all the powers of and be subject to all restrictions upon
the Chief Financial Officer. The Treasurer shall have such other powers and
perform such other duties as may from time to time be prescribed by the Board
of Directors or the Operating Committee.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1. The Corporation shall indemnify any person who has or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or corporate officer of the
Corporation, or is or was a director, corporate officer or employee of the
Corporation serving at the request of the Corporation as a director, officer
or committee member of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to belief that his conduct was unlawful.
SECTION 2. The Corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
corporate officer of the Corporation, or is or was a director, corporate
officer or employee of the Corporation serving at the request of the
Corporation as a director, officer or committee member of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 3. To the extent that a director, corporate officer or
employee of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 1 and 2 of
this Article V or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 4. Any indemnification under Sections 1 and 2 of this
Article (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, corporate officer or employee is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1
and 2 of this Article. Such determination shall be made (1) by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion,
or (3) by the stockholders.
SECTION 5. Expenses (including attorneys' fees) incurred by a
corporate officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or corporate
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized in this
Article. Such expenses (including attorneys' fees) incurred by other
employees may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
SECTION 6. The indemnification and advancement of expenses provided
by, or granted pursuant to, the other sections of this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
SECTION 7. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer or
employee of the Corporation, or is or was serving at the request of the
Corporation as a director, officer or committee member of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status, whether or not the Corporation would have the power to
indemnify him against such liability under this Article.
SECTION 8. For purposes of this Article V, references to the
"corporation" or the "Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees so that any person who is or was a director,
officer or employee of such consistent corporation, or is or was serving at the
request of such constituent corporation as a director, officer or committee
member of another corporation, partnership, joint venture, trust or other
enterprises, shall stand in the same position under this Article with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
SECTION 9. For purposes of this Article, reference to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as director or corporate officer of the Corporation
which imposes duties on, or involves services by, such director or corporate
officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the Corporation" as referred to in
this Article.
SECTION 10. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article, shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, corporate officer or employee and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 11. The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligations to advance
expense (including attorneys' fees).
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS OF STOCK
SECTION 1. Stock Certificates. The stock of the Corporation shall
be represented by stock certificates, in such form as the Board of Directors
may from time to time prescribe, signed by the Chief Executive Officer, the
President, a Vice Chairman of the Board or a Vice President and by the
Secretary or an Assistant Secretary, and sealed with the seal for the
Corporation which may be facsimile, engraved or imprinted. Such stock
certificates shall also be countersigned and registered in such manner, if
any, as the Board prescribes, and if they are countersigned by the transfer
agent other than the Corporation or its employee, or, by a registrar other
than the Corporation or its employee, any other signature on such certificate
may be a facsimile, engraved, stamped or printed. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a stock certificate shall have ceased to be such officer,
transfer agent or registrar before the certificate is delivered by the
Corporation, it may nevertheless be issued and delivered by the Corporation
with the same effect as if such officer, transfer agent or registrar had not
ceased to be such at the delivery date.
SECTION 2. Transfers of Stock. Shares of stock of the Corporation
shall be transferable on the books of the Corporation by the holders thereof
in person or by duly authorized attorney, upon surrender and cancellation of
certificates for a like number of shares of the same series of stock, with
duly executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signatures as the
Corporation or its agents may reasonably require; provided, however, that the
Board of Directors may cause to be stamped or imprinted on any particular
stock certificate or certificates such legend as it deems advisable in order to
help assure compliance with any restrictions imposed by state or by the
constitutions or rules of the New York Stock Exchange, Inc. or the National
Association of Securities Dealers, Inc. on the transferability of the shares
represented thereby, and in no event shall the Corporation be required to
transfer any shares contrary to any such restrictions.
SECTION 3. Lost Stock Certificates. No certificates for shares of
stock of the Corporation shall be issued in place of any certificate alleged
to have been lost, stolen or destroyed, except upon production of such
evidence of the loss, theft or destruction and upon indemnification of the
Corporation and its agents to such extent and in such manner as the Board of
Directors may from time to time prescribe.
ARTICLE VII
CONTRACTS, CHECKS, NOTES ETC
SECTION 1. Contracts. Except as otherwise determined from time to
time by the Board of Directors or the Operating Committee with respect to
specific contracts or classes of contracts, all contracts shall be signed by
an officer of the Corporation, and such signature may be attested to by the
signature of the Secretary or an Assistant Secretary, who may if he so desires
affix the seal of the Corporation thereto.
SECTION 2. Checks, Notes, Drafts, Acceptances etc.. All checks,
notes, drafts, acceptance, bills of exchange or orders for the payment of
money shall be signed by such officer or officers, person or persons, as the
Board of Directors or the Operating Committee may from time to time authorize.
The signature of any such officer or officers or person or person's may, to
the extent authorized by the Board or Operating Committee, be a facsimile.
ARTICLE VIII
GENERAL
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall
commence on January 1 and end on December 31 of each year.
SECTION 2. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation and the year of its incorporation, and shall be in
such form as may be approved from time to time by the Board of Directors.
SECTION 3. Offices. The principal offices of the Corporation is in
the City of Wilmington, County of New Castle, State of Delaware. The
principal place of business of the Corporation is at One Seaport Plaza, in the
City, County and State of New York. The Corporation may establish or abandon
from time to time such additional offices and places of business within and
without the State of Delaware as it may deem appropriate in the conduct of its
business.
SECTION 4. References. Whenever in the Bylaws reference is made to
the Bylaws, such reference shall be deemed to be these Bylaws as amended from
time to time, and whenever reference is made to the Certificate of
Incorporation, such reference shall be deemed to be the Certificate of
Incorporation of the Corporation, as amended from time to time. These Bylaws
are subject to the Certificate of Incorporation, and in the event of any
inconsistency between the Bylaws and the Certificate of Incorporation the
latter shall govern. References herein to the whole Board of Directors shall
mean to the number of directors as last fixed by these Bylaws or by the Board
irrespective of any vacancies.
ARTICLE IX
AMENDMENTS
The Bylaws may be amended (which shall be deemed to include any
change in, addition to, or repeal of any Bylaw) at any meeting of the
stockholders by the affirmative vote of the holders of a majority or more of
the outstanding shares of Common Stock, and, in addition, may be amended at
any meeting of the Board of Directors by the affirmative vote of a majority of
the whole Board; provided, however, that the Board shall not have power to
amend the purpose of annual meetings of stockholders contained in Section 1 of
Article 1, or the requirements for the quorum or for the vote needed to take
action contained in Section 4 of Article I or in Section 4 of Article II or in
Section 5 of Article III, or to amend in any respect this Article IX of the
Bylaws.
The undersigned, duly qualified and acting Assistant Secretary of
Prudential Securities Incorporated, a Delaware corporation, hereby certifies
that the foregoing is a true and correct copy of the Bylaws of said
corporation, as amended to date.
Date _________________________ _________________________
Assistant Secretary
EXHIBIT 1.11
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER REYNOLDS INC.
Comprised of
Certificate of Incorporation of Dean Witter & Co. Incorporated, as set forth
in Appendix A to Plan and Agreement of Merger dated as of December 5, 1973, by
and between Temporary Corporation and Dean Witter & Co. Incorporated, and
joined in by Dean Witter Organization Inc., effective February 28, 1974;
as amended by
Certificate of Amendment of Certificate of Incorporation of Dean Witter & Co.
Incorporated, effective April 8, 1974;
and as further amended by
Section 1.2 of Plan and Agreement of Merger dated as of December 27, 1977, by
and between Dean Witter & Co. Incorporated and Reynolds Securities Inc.,
effective January 3, 1978.
(Original Certificate of Incorporation of Dean Witter & Co. Incorporated was
filed with the Secretary of State of Delaware on April 15, 1968.)
STATE OF DELAWARE
Office of Secretary of State
I, Elisha T. Dukes, Secretary of State of the State of
Delaware, do hereby certify that the above and foregoing is a true an correct
copy of Certificate of Incorporation of the "DEAN WITTER & CO. INCORPORATED"
as received and filed in this office the fifteenth day of April, A.D. 1968, at
4:30 o'clock P.M.
In Testimony Whereof, I have hereunto set my hand
and official seal at Dover this tenth day of July in the year of our Lord one
thousand nine hundred and sixty eight.
/s/ Elisha T. Dukes
----------------------------
Secretary of State
/s/ (illegible)
----------------------------
Assistant Secretary of State
[Seal]
==============================================================================
CERTIFIED COPY
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER & CO.
INCORPORATED
==============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
NAME
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
ARTICLE III
CORPORATE PURPOSES AND POWERS
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares and Classes Authorized........................ 12
SECTION 2. Increase or Decrease in Amount of Authorized Shares.. 12
SECTION 3. Preferences, Rights, Limitations and Restrictions of
Capital Stock........................................ 12
SECTION 4. Certain Definitions.................................. 22
ARTICLE V
RESTRICTION ON DIVIDENDS
ARTICLE VI
RIGHTS AND OPTIONS OF CORPORATION TO PURFHASE
SHARES OF CAPITAL STOCK FROM HOLDERS THEREOF
SECTION 1. When Rights and Options Arise........................ 23
SECTION 2. Failure to Exercise Rights and Options Does Not
Operate as Waiver.................................... 26
SECTION 3. Consideration to be Paid by Corporation.............. 26
SECTION 4. Designation by Corporation of Other Purchasers and
Consideration to be Paid by Them..................... 28
SECTION 5. Determination of Net Book Value...................... 28
SECTION 6. Dispute as to Net Book Value......................... 29
SECTION 7. Method of Exercising Corporation's Right and Option
to Purchase Shares................................... 30
SECTION 8. Right and Option Exercisable with Respect to All or
Any Part of the Shares Subject Thereto............... 31
SECTION 9. Right of Holder to Transfer Shares Upon Non-Exercise
by Corporation of Right to Purchase.................. 31
SECTION 10. Conditions Under Which Purchase May Be Postponed..... 31
SECTION 11. Waiver by Corporation................................ 32
SECTION 12. Other Arrangements................................... 32
ARTICLE VII
RIGHT OF HOLDERS OF CAPITAL STOCK TO REQUIRE
CORPORATION TO PURCHASE SHARES
SECTION 1. Exercise of Right.................................... 33
SECTION 2. Consideration to be Paid............................. 33
SECTION 3. Notification and Payment............................. 34
SECTION 4. Conditions Under Which Corporation's Obligations May
Be Postponed......................................... 34
SECTION 5. Conflict with Rights of Corporation under Article VI. 35
SECTION 6. Designation by Corporation of Other Purchasers and
Consideration to be Paid by Them..................... 35
ARTICLE VIII
INCORPORATOR
ARTICLE IX
INITIAL DIRECTORS
ARTICLE X
BOARD OF DIRECTORS
SECTION 1. Powers of the Board of Directors..................... 36
SECTION 2. Reliance on Books.................................... 39
ARTICLE XI
MEETINGS OF STOCKHOLDERS AND DIRECTORS;
CORPORATE BOOKS; ELECTION OF DIRECTORS; NOTICES
ARTICLE XII
TRANSACTIONS WITH DIRECTORS OR OFFICERS
ARTICLE XIII
INDEMNIFICATIONS
ARTICLE XIV
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
ARTICLE XV
RESERVATION OF RIGHTS TO AMEND CERTIFICATE
OF INCORPORATION
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER & CO.
Incorporated
ARTICLE I
NAME
The name of the Corporation is:
Dean Witter & Co. Incorporated
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENTS
The registered office of the Corporation in the State of
Delaware is to be located at No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is the Corporation Trust Company, No. 100 West Tenth Street,
in the City of Wilmington, County of New Castle, State of Delaware.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The nature of the Corporation's business, or the objects or
purposes to be transacted, promoted or carried on by the Corporation, is to
engage in any lawful act or activity for which a corporation may be organized
under the General Corporation Law of the State of Delaware, including, without
limitation:
(a) To engage in and carry on a securities business,
including each and every aspect thereof, in any and all
capacities to the full extent permitted by law, including a
general brokerage, underwriting and investment business; to act
as brokers, dealers, traders, investment bankers and investors
in securities; to deal in puts and calls with dealers who
handle puts and calls; to engage in arbitrage transactions of
all kinds; to underwrite and distribute, on behalf of itself
and of others, securities and to participate with others in any
such underwriting or distribution; to negotiate, or to assist
or participate in the negotiation of, private placements of
securities; and to do any and all things which may be useful in
connection with the foregoing activities or incidental to the
conduct of all such activities and, whether or not in connection
therewith, to purchase, subscribe for, borrow, acquire, hold,
exchange, sell, distribute, assign, transfer, lend, mortgage,
pledge, hypothecate, guarantee, assign, transfer, lend,
mortgage, pledge, hypothecate, guarantee, deal in or otherwise
effect any and all transactions of any kind, character or
description whatsoever in or with respect to securities, and
with respect to foreign exchange, acceptances and commercial
paper of every kind, character or description. As used in this
Article III, the term "securities" shall include shares of
stock, bonds, debentures, notes, bills, other evidences of
indebtedness, certificates, subscriptions, investment
contracts, voting trust certificates, interests in oil, gas or
other mineral rights, certificates of deposit or interim
certificates for, receipts for, guarantees of, or warrants,
options or rights to subscribe to or purchase any of the
foregoing, or any other instruments or interests in the nature
of securities of any kind whatsoever, issued or created by any
person, corporation, trust, fiduciary, firm, public authority,
or organization of any kind.
(b) To engage in and carry on the business of brokers
and dealers in commodities (which term as used in this
Certificate of Incorporation includes contracts for the future
delivery thereof), and to do any and all things which may be
useful in this Certificate of Incorporation includes contracts
for the future delivery thereof), and to do any and all things
which may be useful in connection therewith or incidental to
the conduct thereof and, whether or not in connection
therewith, to purchase, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge,
hypothecate, guarantee or otherwise dispose of, or import or
export or turn to account in any manner and generally to deal
in otherwise effect any and all transactions of every kind,
character or description whatsoever in or with respect to,
commodities and products, merchandise, articles or commerce,
materials, personal and real property, of every kind, character
or description whatsoever and any interest therein, and
instruments evidencing rights to acquire any present or future
interests therein.
(c) To maintain accounts with and for customers, of
every kinds, character or description whatsoever, including
margin accounts, with respect to securities and/or commodities
and to do any and all things which may be useful in connection
with or incidental to the maintenance of such accounts, and to
buy, sell and otherwise deal in notes, open accounts and other
similar evidences of indebtedness and to loan money and to take
notes, open accounts and other similar evidences of
indebtedness as collateral security therefor.
(d) To render advisory, investigatory, supervisory,
investment, managerial or other services to any person,
corporation, trust, fiduciary, firm, public authority, or
organization of any kind.
(e) To act in any capacity whatsoever as financial,
commercial or business agent or representative, general or
special, or as factor, broker or in any other capacity
whatsoever for, and to effect any and all transactions of any
kind, character or description whatsoever for the account of,
any person, corporation, trust, fiduciary, firm, public
authority, or organization of any kind.
(f) To acquire and hold one or more memberships in
various securities exchanges, boards of trade, commodities
exchanges, clearing corporations or associations and/or other
similar institutions located within or without the United
States of America, or otherwise to secure membership privileges
or other privileges with such institutions, and to acquire and
hold membership in any association of brokers, security
dealers, investment bankers or commodity dealers, or any other
association, membership in which will in any way facilitate the
conduct of the Corporation's business.
(g) To hold as nominee, custodian or otherwise, any
securities or commodities belonging to others, to issue
appropriate receipts or certificates therefor, and to exercise
while holding them any and all of the rights, powers and
privileges of ownership thereof, including the right to loan
them to others.
(h) To guarantee the signatures of customers or others
whenever such guarantees are convenient in the conduct of the
Corporation's business.
(i) To cause or allow the legal title to, or any legal
or equitable interest in any property of any sort of the
Corporation to remain or be vested or registered in the name of
any other person, corporation, trust, fiduciary, firm, public
authority, or organization of any kind, whether in trust for or
as agent or nominee of the Corporation, or otherwise for its
account or benefit.
(j) To transact a general real estate dealer, agency
and brokerage business, including acting as agent, broker or
attorney in fact for any person, corporation, trust, fiduciary,
firm, public authority, or organization of any kind in buying,
selling, leasing and dealing in real property and any interests
and estates therein (including sale and lease-back
transactions), on commission or otherwise, renting and managing
of estates, making, arranging for, or obtaining loans upon such
property, and supervising, managing and protecting such
property and all loans, interests in, and claims affecting the
same.
(k) To borrow money for any business, object or purpose
of the Corporation from time to time, without limit as to
amount: to issue any kind of evidence of indebtedness, whether
or not in connection with borrowing money, including evidences
of indebtedness convertible into shares of capital stock of the
Corporation; to secure the payment of any evidence of
indebtedness by the creation of any interest in any of the
property or rights of the Corporation, or in any property owned
by others when the Corporation has the right so to do, whether
owned by or subject to such right of the Corporation at the
time such indebtedness is incurred or thereafter; to accept
secured demand notes.
(l) To lend to any person, corporation, trust,
fiduciary, firm, public authority, or organization of any kind
any of the Corporation's funds or property, with or without
security, and to guarantee the loans of any of the foregoing.
(m) To purchase, subscribe for, borrow, acquire, hold
for investment or otherwise own, exchange, sell, distribute,
assign, transfer, lend, mortgage, pledge, hypothecate,
guarantee, deal in or otherwise acquire or dispose of
securities of any corporation or business organization
whatsoever organized under the laws of the United States of
America or of any State, territory, dependency or possession
thereof or of any foreign country, or of any subdivision,
territory, dependency, possession or municipality thereof,
without regard to the business carried on by such corporation
or business organization or to the part of the world in which
it is carried on or the corporation is organized, and to
purchase, subscribe for, borrow, acquire, hold for investment
or otherwise, own, exchange, sell, distribute, assign,
transfer, lend, mortgage, pledge, hypothecate, guarantee, deal
in or otherwise acquire or dispose of bonds, notes, bills, or
any other evidences of indebtedness issued by the United States
of America, any State thereof or any foreign country, or by any
agency, subdivision, territory, dependency, possession or
municipality, including any agency of a municipality, thereof.
(n) To engage in any transaction relating to petroleum,
gas and other minerals, and the products thereof, and to
acquire, hold for investment or otherwise, own, lease, sell or
otherwise dispose of, exercise, exchange, mortgage, pledge,
exploit, and otherwise deal in any and all lands and interest
in land in, on or under which petroleum, gas and other minerals
are or may be located and any and all interests in petroleum,
gas and other minerals, and the products thereof.
(o) To purchase, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge,
hypothecate, convert, redeem, escrow, reissue or cancel shares
of its own capital stock or instruments evidencing its
indebtedness or any other securities issued by it.
(p) To engage in any financial, commercial, mercantile,
manufacturing, industrial, trading, mining, petroleum or
petroleum products business or venture of any kind, character
or description whatsoever, either by itself or jointly with
others, and to do any and all things which may be useful in
connection with or incidental to the conduct of such business
or venture.
(q) To engage in a commercial finance business,
including the factoring of commercial paper, either by itself
or jointly with others, and to do any and all things which may
be useful in connection with or incidental to the conduct of
such business.
(r) To acquire all or any part of the property and
business, including good will, of any person, corporation,
trust, firm, fiduciary, public authority, or organization of
any kind, to pay as consideration therefor cash or property,
including securities issued by the Corporation, to assume in
connection therewith any liabilities or obligations of any such
person, corporation, trust, firm, fiduciary, public authority,
or organization of any kind, and to hold, conduct, use of
dispose of the whole or any part of the property and business,
including any good will, so acquired.
(s) To acquire and hold real, personal and mixed
property of any and all kinds.
(t) To exercise and enjoy all powers, rights and
privileges, in any part of the world, which may be exercised
and enjoyed by any corporation organized under the General
Corporation Law of the State of Delaware.
The enumeration of certain powers is not intended as exclusive
of, or as a waiver of, any of the powers, rights, or privileges conferred by
the General Corporation Law of the State of Delaware as now in force or as it
may be hereafter amended, and the Corporation shall be authorized to exercise
and enjoy all powers conferred upon corporations by the laws of the State of
Delaware as in force from time to time, provided that the Corporation shall
not in any jurisdiction carry on the business of commercial banking or any
other business, or exercise any powers, which under the laws thereof it could
not lawfully carry on or exercise.
The foregoing clauses shall be construed as powers, as well as
objects and purposes, of the Corporation, and the matters expressed in each
clause shall, except as otherwise expressly provided, be in no wise limited by
reference to or inference from the terms of any other clause, but shall be
regarded as independent objects, purposes and powers, and the use of the term
"including" in any of the foregoing clauses shall not be construed to limit
the generality of the words preceding such term.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares and Classes Authorized. The total number of
shares of capital stock which the Corporation shall have authority to issue is
7,200,000 shares, which shall include 4,000,000 shares of 3% Preferred Stock
of the par value of $10 each, 3,000,000 shares of Participating Preferred
Stock of the par value of $1 each , and 200,000 shares of Common Stock of the
par value of $1 each (such 3% Preferred Stock and Participating Preferred
Stock being sometimes hereinafter collectively called "preferred stock", such
classes of preferred stock and the Common Stock being sometimes hereinafter
collectively called "capital stock").
SECTION 2. Increase or Decrease in Amount of Authorized
Shares. The amount of the authorized capital stock may be increased or
decreased by an amendment to this Certificate of Incorporation authorized by
the affirmative vote of the holders of a majority of the shares of Common
Stock and the affirmative vote of the holders of a majority of the shares of
each class of stock increased or decreased by such amendment.
SECTION 3. Preferences, Rights, Limitations and Restrictions
of Capital Stock. The following is a statement of the designations and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, in respect of the classes of the capital stock, and of
the authority with respect thereto expressly vested in the Board of Directors
of the Corporation:
PART I - 3% PREFERRED STOCK
(a) All shares of 3% Preferred Stock shall be identical
with each other in all respects; and the 3% Preferred Stock
shall rank senior to all other classes of stock of the
Corporation both as to dividends and upon liquidation.
(b) Before any dividends (other than dividends payable
in shares of capital stock of the Corporation) on any class or
classes of stock of the Corporation other than the 3% Preferred
Stock shall be declared or paid or set apart for payment in any
fiscal year, the holders of shares of 3% Preferred Stock shall
be entitled to receive non-cumulative preferential cash
dividends when and as declared by the Board of Directors at the
rate of 3% of the par value thereof per annum, payable on such
dividend payment dates as may be fixed from time to time by the
Board of Directors to holders of record on such dates (not
exceeding 60 days preceding such dividend payment dates) as may
be determined by the Board of Directors. Such dividends shall
not be cumulative whether or not in any fiscal year there shall
be net income or surplus available for the payment of such
dividends in such year. The holders of shares of 3% Preferred
Stock shall be entitled to receive dividends payable in shares
of 3% Preferred Stock but not in shares of other classes of
capital stock of the Corporation when and as declared by the
Board of Directors payable on such dividend payment dates as
may be fixed from time to time by the Board of Directors to
holders of record on such dates (not exceeding 60 days
preceding such dividend payment dates) as may be determined by
the Board of Directors; provided, however, that the holders of
shares of 3% Preferred Stock shall not be entitled to any
preference with respect to the declaration or payment or
setting apart for payment of such dividends and that payment of
a dividend in shares of capital stock of the Corporation on the
Participating Preferred Stock or the Common Stock does not
require declaration or payment of such a dividend on the 3%
Preferred Stock. In declaring dividends payable in shares of
capital stock, the Board of Directors may in its discretion
determine that fractional shares otherwise issuable upon
payment of the dividends shall be disregarded and that no
fractional shares shall be issued or cash or other payment made
therefor.
(c) In the event of any liquidation, dissolution or
winding up of the Corporation, before any payment or
distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of
any class or classes of stock of the Corporation other than the
3% Preferred Stock, the holders of shares of 3% Preferred Stock
shall be entitled to receive, out of the assets of the
Corporation or the proceeds thereof, a preferential payment at
the rate of $10 per share, plus an amount equal to any
dividends declared but unpaid thereon to the date of final
distribution with respect to such shares held by such holders;
but they shall be entitled to no further payment. If, upon any
liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or the proceeds thereof,
distributable among holders of shares of 3% Preferred Stock
shall be insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the
respective amounts which would be payable on such shares if
paid in full.
PART II - PARTICIPATING PREFERRED STOCK
(d) All shares of Participating Preferred Stock shall
be identical with each other in all respects, and the
Participating Preferred Stock shall rank junior to the 3%
Preferred Stock both as to dividends and upon liquidation, and
shall rank senior to the Common Stock both as to dividends and
upon liquidation.
(e) Before any dividends (other than dividends payable
in shares of capital stock of the Corporation) on the Common
Stock shall be declared or paid or set apart for payment in any
fiscal year, the holders of shares of Participating Preferred
Stock shall be entitled to receive non-cumulative preferential
cash dividends when and as declared by the Board of Directors at
the rate of 50 Cents per share per annum, payable on such
dividend payment dates as may be fixed from time to time by the
Board of Directors to holders of record on such dates (not
exceeding 60 days preceding such dividend payment dates) as may
be determined by the Board of Directors. Such dividends shall
not be cumulative whether or not in any fiscal year there shall
be net income or surplus available for the payment of such
dividends in such year. After such dividends are paid in any
fiscal year, holders of Participating Preferred Stock and
holders of Common Stock shall be entitled to receive dividends
in cash or property other than dividends payable in capital
stock of the Corporation) when and as declared by the Board of
Directors, share for share alike, payable on such dividend
payment dates as may be fixed from time to time by the Board of
Directors to holders of record on the dates (not exceeding 60
days preceding such dividend payment dates) as may be
determined by the Board of Directors.
(f) Holders of shares of Participating Preferred Stock
and holders of shares of Common Stock shall share equally,
share for share alike, in any dividends declared payable in
shares of capital stock (including shares of 3% Preferred
Stock) of the Corporation, when and as declared by the Board of
Directors, on such dividend payment dates as may be fixed from
time to time by the Board of Directors to holders of record on
such dates (not exceeding 60 days preceding such dividend
payment dates) as may be determined by the Board of Directors;
provided that dividends payable in shares of Common Stock shall
be declared payable only on shares of Common Stock; and
provided further, that upon the declaration of such a dividend
payable in shares of Common Stock, the Board of Directors must
declare payable to the holders of each share of Participating
Preferred Stock a dividend of the same number of shares and/or
fractions thereof of Participating Preferred Stock as is
payable in shares of Common Stock to the holders of each share
of Common Stock. In declaring dividends payable in shares of
capital stock, the Board of directors may in its discretion
determine that fractional shares otherwise issuable upon
payment of the dividend shall be disregarded and that no
fractional shares shall be issued or cash or other payment made
therefor.
(g) In the event of any liquidation, dissolution or
winding up of the Corporation, the assets remaining after the
preferential payment provided for in Paragraph (c) of this
Section 3 is made shall be distributed among the holders of
Participating Preferred Stock and the holders of Common Stock in
the following order of priority:
(i) First, the holders of shares of Participating
Preferred Stock shall be entitled to receive a
preferential payment at the rate of $10 per share for
each share of Participating Preferred Stock held by them;
provided that if the assets of the Corporation, or the
proceeds thereof, distributable among holders of shares
of Participating Preferred Stock shall be insufficient to
pay in full the preferential amount aforesaid, then such
assets, or the proceeds thereof, shall be distributed
among such holders ratably in accordance with the
respective amounts which would be payable on such shares
if paid in full;
(ii) Second, the holders of shares of Common Stock
shall be entitled to receive payment at the rate of $10
per share for each share of Common Stock held by them;
provided that if the assets of the Corporation, or the
proceeds thereof, remaining after the preferential
payment to the holders of shares of Participating
Preferred Stock are insufficient to pay in full the
aforesaid amount, then such assets, or the proceeds
thereof, shall be distributed among the holders of Common
Stock ratably in accordance with the respective amounts
which would be payable on such shares if paid in full; and
(iii) Third, all of the remaining assets of the
Corporation, or the proceeds thereof, shall be
distributed to the holders of shares of Participating
Preferred Stock and the holders of shares of Common
Stock, share for share alike.
(h) No limitations, conditions or restrictions whatever
are imposed by the provisions of Part I or Part II of this
Section 3 upon the purchase or redemption or other acquisition
by the Corporation of any shares of its capital stock.
PART III - REDEMPTION PROVISIONS APPLICABLE
TO THE PREFERRED STOCK
(i) At the option of the Board of Directors, the
Corporation may at any time redeem the whole or from time to
time any part of; (1) the 3% Preferred Stock then outstanding,
at the par value thereof, plus an amount equal to all dividends
declared but unpaid thereon to the redemption date (as
hereinafter defined) with respect to each share to be redeemed;
(2) the Participating Preferred Stock then outstanding at the
greater of (i) the net book value thereof as of the valuation
date (as hereinafter defined or (ii) $10 per share. Such net
book value of the Participating Preferred Stock shall be
determined by the Corporation in accordance with Section 5 of
Article VI and any dispute with respect thereto shall be
resolved in accordance with Section 6 of Article VI. No
premium over the redemption prices specified in the first
sentence of this Paragraph (i) shall be paid upon the
redemption of any class of preferred stock pursuant to this
Part III. The holders of preferred stock whose shares are to
be redeemed and the class and number of shares so to be
redeemed shall be selected in such manner as the Board of
Directors may in its discretion determine and such selection
need not be by lot or pro rata and may be limited to all or any
part of the shares of preferred stock held by one or more
holder or holders thereof.
(A) Redemptions of 3% Preferred Stock shall be
instituted by the mailing of a notice by the Corporation
by first class mail to the holder or holders of record
and/or the proposed holder or holders of the shares of
stock so to be redeemed at the last known address or
addresses of such holder or holders. Such notice shall
state the number of shares to be redeemed, or the method
pursuant to which such number will be computed, the price
per share to be paid and the date determined by the Board
of Directors for the redemption (such date, when referred
to in connection with redemptions of preferred stock, is
hereinafter called the "redemption date"), such redemption
date to be within 100 days after the date such notice is
mailed. As referred to in this Article IV, a proposed
holder of shares shall mean a person who is entitled to
receive such shares by means of a stock dividend, stock
split, conversion, purchase, or otherwise.
(B) Redemptions of Participating Preferred Stock
shall be instituted by the mailing of a notice by the
Corporation by first class mail to the holder or holders
of record and/or the proposed holder or holders of the
shares of Participating Preferred Stock so to be redeemed
at the last known address or addresses of such holder or
holders. Such notice shall state the number of shares of
Participating Preferred Stock to be redeemed, or the
method pursuant to which such number will be computed,
and the date (determined by the Board of Directors) as of
which the net book value of such shares is to be
determined (herein referred to as the "valuation date"),
such valuation date to be within 100 days after the date
of the mailing of such notice. After such net book value
is determined, the Corporation shall mail as aforesaid a
second notice to such holder or holders, which notice
shall state the price per share to be paid by the
Corporation (the "redemption price") and the redemption
date (determined by the Board of Directors), which
redemption date shall be within 60 days after the
valuation date. Such second notice shall be mailed not
less than 30 days in advance of the redemption date;
provided, however, that the Corporation may, after
mailing such second notice fixing the redemption date and
after the right of such holder or holders to dispute net
book value under Section 6 of Article VI has expired,
accelerate the redemption date by mailing as aforesaid a
third notice to such holder or holders, which notice
shall state the date (which shall be not less than five
nor more than ten days after the mailing of such notice)
to which the redemption date shall be accelerated.
(C) The holder or holders of the shares so to be
redeemed shall deliver the certificate or certificates
representing such shares, properly endorsed for transfer,
to the Corporation at its principal place of business on
the redemption date, against payment therefor. Any
documentary stamp tax or transfer tax payable on the
transfer to the Corporation of the shares being redeemed
shall be paid by the Corporation. The Board of Directors
shall have full power and authority, subject to the
limitations and provisions herein contained, to prescribe
the terms and conditions upon which the preferred stock
shall be redeemed from time to time.
(j) If, on the redemption date, any certificates for
shares of preferred stock so called for redemption shall not
have been surrendered for cancellation, all rights of the
holder or holders of such certificates with respect to such
shares, including, without limitation, all dividend rights,
shall permanently cease and terminate, and such holder shall
have no interest in or claim against the Corporation with
respect to such shares except as hereinafter provided. The
redemption price for such shares shall be set aside by the
Corporation, in an account separate and apart from its other
funds, for the benefit of the holder or holders of record of
the shares so called for redemption and not surrendered, and
such holder or holders upon surrender of such certificate or
certificates shall be entitled only to receive the redemption
price for such shares. Any redemption payments so set aside by
the Corporation and unclaimed at the end of six years from the
redemption date shall at the option of the Board of Directors
revert to the general funds of the Corporation, and thereupon
such funds shall become contributions to the capital of the
corporation and the holder or holders of such shares shall have
no further claim or right to such funds.
(k) In the event that there shall be a dispute as to
the net book value of shares of Participating Preferred Stock
being redeemed pursuant to the provisions of this Section 3,
and a determination thereof is to be made by a firm of
independent public accountants pursuant to Section 6 of Article
VI, the redemption date shall be postponed until such
determination has been made and the Corporation has mailed, by
first class mail to the last known address of the disputant,
written notice of such determination and of the new redemption
date, which notice shall be given not more than ten days after
such determination has been made and shall specify a new
redemption date not less than five and not more than ten days
following the mailing of such notice.
(l) Shares of any class of preferred stock which have
been purchased by the Corporation pursuant to the provisions of
Article VI or Article VII or which have been redeemed pursuant
to the provisions of this Section 3 or which have been
converted into or exchanged for shares of capital stock of any
other class or classes pursuant to the provisions of this
Section 3, upon compliance with any applicable provisions of
the General Corporation Law of the State of Delaware, shall
have the status of authorized and unissued shares of such class
of preferred stock.
PART IV - CONVERSION PROVISIONS APPLICABLE TO THE
PREFERRED STOCK
(m) At the option of the Board of Directors, the
Corporation may at any time convert all or from time to time
any part of the shares of any class of preferred stock held by
any holder thereof into that number of shares of the other
class of preferred stock which would, if issued on the
valuation date hereinafter referred to, have an aggregate net
book value equal to the aggregate net book value of the shares
of preferred stock so to be converted. Fractional shares of
preferred stock which would otherwise be issuable upon
conversion pursuant to the terms hereof shall be disregarded,
and no fractional shares shall be issued or cash or other
payment made therefor. Such net book value of the preferred
stock shall be determined by the Corporation in accordance with
Section 5 of Article VI and any dispute with respect thereto
shall be resolved in accordance with Section 6 of Article VI.
The holders of preferred stock whose shares are to be converted
and the class and number of shares so to be converted shall be
selected in such manner as the Board of Directors may in its
discretion determine and such selection need not be by lot or
pro rata and may be limited to all or any part of the shares of
preferred stock held by one or more holders thereof. The
holder or holders of the shares so to be converted shall
deliver the certificate or certificates representing such
shares, properly endorsed for transfer, to the Corporation at
its principal place of business on the conversion date (as
hereinafter defined) against receipt of the shares of stock
into which such shares are being converted. Any documentary
stamp tax or transfer tax payable on the transfer to the
Corporation of the shares being converted and the issuance or
transfer by the Corporation of the shares into which such
shares are being converted pursuant to the provisions of this
Section 3 shall be paid by the Corporation. The Board of
Directors shall have full power and authority, subject to the
limitations and provisions herein contained, to prescribe the
terms and conditions upon which the preferred stock shall be
converted from time to time.
(n) Conversions of the preferred stock pursuant to
Paragraph (m) of this Section 3 shall be instituted by the
mailing of a notice by the Corporation by first class mail to
the holder or holders of record or proposed holder or holders
(as defined in Paragraph (i) (A) of this Section 3) of the
shares of preferred stock so to be converted at the last known
address of such holder or holders. Such notice shall state (i)
the class and number of shares of preferred stock to be
converted, or the method pursuant to which such number will be
computed, (ii) the class into which such shares are to be
converted, and (iii) the date (determined by the Board of
Directors) as of which the net book value of each of the
respective classes of preferred stock involved is to be
determined (herein referred to as the "valuation
date"), such valuation date to be within 100 days after the
date of the mailing of such notice. After such net book value
is determined, the Corporation shall mail as aforesaid a second
notice to such holder or holders, which notice shall state the
number of shares of the appropriate class of preferred stock to
be issued to such holder or holders, and the date (determined
by the Board of Directors) on which the conversion shall be
effected (the "conversion date"), which conversion date shall
be within 60 days after the valuation date. Such second notice
shall be mailed not less than 30 days in advance of the
conversion date; provided, however, that the Corporation may,
after mailing such second notice fixing the conversion date and
after the right of such holder or holders to dispute net book
value under Section 6 of Article VI has expired, accelerate the
conversion date by mailing as aforesaid a third notice to such
holder or holders, which notice shall state the date (which
shall be not less than five nor more than ten days after the
mailing of such notice) to which the conversion date shall be
accelerated. From and after the valuation date, all rights of
the holder or holders of preferred stock with respect to the
shares of preferred stock to be converted, including, without
limitation, all dividend rights, shall permanently cease and
terminate (irrespective of whether a dispute arises with
respect to the determination of the net book value of such
shares), excepting only the right to receive the shares of
preferred stock to be issued to such holder on the conversion
date. Anything herein to the contrary notwithstanding, if any
dividends or distributions (including any distributions upon
the liquidation, dissolution or winding up of the Corporation)
are declared by the Corporation on the class of preferred stock
to be issued to any such holder on the conversion date, payable
to holders of record of such class as of a date occurring on or
after the valuation date and before the conversion date, such
holder shall be entitled to such dividends as if he were a
holder on such record date of such shares to be issued to him
on the conversion date.
(o) If, on the conversion date, any certificates for
shares of preferred stock being converted at the option of the
Corporation pursuant to the provisions of this Section e shall
not have been surrendered for conversion, such holder shall
have no interest in or claim against the Corporation with
respect to such shares except as hereinafter provided. The
shares into which the shares represented by such certificates
are being converted shall be deposited in a special account
with the Corporation for the benefit of such holder, to be
delivered to such holder by the Corporation, along with any
dividends or distributions which have been paid thereon, upon
surrender of the certificate or certificates for the shares to
be converted. In the event such holder shall not, within six
years after the conversion date, surrender such certificate or
certificates and claim the shares deposited in such special
account, such deposited shares and all dividends or
distributions which have been paid thereon during such six year
period shall at the option of the Board of Directors be deemed
contributions to the capital of the Corporation, and such
holder shall have no further claim or right to such deposited
shares and such dividends or distributions.
(p) Anything herein to the contrary notwithstanding, if
any holder of shares of preferred stock shall, within 20 days
of the mailing of a notice of conversion of any or all of his
shares of preferred stock sent pursuant to Paragraph (n) of
this Section 3, notify the Corporation at its principal place of
business by first class mail that he is desirous that all of
the shares of preferred stock so to be converted shall instead
be redeemed by the Corporation, then if at the time of such
notification the purchase of such shares by the Corporation, if
requested pursuant to the provisions of Article VII, would not
be postponed pursuant to the provisions of Section 4 of Article
VII, such notice of conversion was mailed at the time such
notice of conversion shall in all respects be treated as if it
were originally a notice of redemption of such shares mailed at
the time such notice of conversion was mailed and such shares
shall be redeemed by the Corporation pursuant to the provisions
of Part III of this Section 3.
(q) Subject to the provisions of Paragraph (8) of this
Section 3, any holder of shares of Participating Preferred
Stock shall have the right and option at any time and from time
to time to convert any or all of such shares into that number
of shares of 3% Preferred Stock which would, if issued on the
valuation date hereinafter referred to, have an aggregate net
book value equal to the aggregate net book value of the shares
of Participating Preferred Stock to be converted; provided that
fractional shares of 3% Preferred Stock which would otherwise
be issuable upon conversion pursuant to the terms hereof shall
be disregarded, and no fractional shares shall be issued, or
cash or other payment made therefor. The net book value of the
shares of preferred stock shall be determined by the
Corporation in accordance with Section 5 of Article VI as of
the close of the regular quarterly accounting period during
which the holder mails notice pursuant to this Paragraph (q) of
his election to exercise such right and option of conversion,
or such earlier date as such holder and the Corporation shall
jointly determine (such date of determination being herein
referred to as the "valuation date"), and any dispute with
respect to the computation of such net book value shall be
resolved in accordance with Section 6 of Article VI. Any
holder of shares of Participating Preferred Stock desirous of
converting all or any part of such shares shall institute any
conversion pursuant to this Paragraph (q) by mailing the
Corporation at its principal place of business a written notice
by first class mail advising the Corporation of his election to
exercise his right and option of conversion of such shares, and
enclosing the certificate or certificates for the shares to be
converted. After such net book value is determined, the
Corporation shall mail to such holder by first class mail a
notice stating the number of shares of 3% Preferred Stock to be
issued to such holder upon conversion and specifying the
conversion date, which date shall be within 60 days after the
valuation date. Such notice shall be mailed not less than 30
days in advance of the conversion date; provided, however, that
the Corporation may, after mailing such second notice fixing
the conversion date and after the right of such holder to
dispute net book value under Section 6 of Article VI has
expired, accelerate the conversion date by mailing as aforesaid
a third notice to such holder, which notice shall state the
date (which shall be not less than five nor more than ten days
after the mailing of such notice) to which the conversion date
shall be accelerated. On the conversion date such shares shall
be delivered to such holder at the principal place of business
of the Corporation or such other place as such holder and the
Corporation shall jointly determine. From and after the
valuation date, all rights of such holder with respect to the
shares of Participating Preferred Stock to be converted,
including, without limitation, all dividend rights, shall
permanently cease and terminate (irrespective of whether a
dispute arises with respect to the computation of the net book
value of such shares), excepting only the right to receive the
shares of 3% Preferred Stock to be issued on the conversion
date. Anything herein to the contrary notwithstanding, if any
dividends or distributions (including any distributions upon
the liquidation, dissolution or winding up of the Corporation)
are declared by the Corporation on the class of preferred stock
to be issued to such holder on the conversion date payable to
holders of record of such class as of a date occurring on or
after the valuation date and before the conversion date, such
holder shall be entitled to such dividends as if he were a
holder on such record of such shares to be issued to him on the
conversion date.
(r) If, in connection with the conversion of shares of
preferred stock pursuant to the provisions of this Section 3,
there shall be a dispute as to the net book values of any class
or classes of preferred stock and a determination thereof is to
be made by a firm of independent public accountants pursuant to
Section 6 of Article VI, the conversion date shall be postponed
until such determination has been made and the Corporation has
mailed, by first class mail to the last known address of the
disputant, written notice of such determination and of the new
conversion date for such shares, which notice shall be given
not more than ten days after such determination has been made
and shall specify a new conversion date not less than five and
not more than ten days following the mailing of such notice.
(s) Anything herein to the contrary notwithstanding, no
conversion of shares of preferred stock pursuant to Paragraph
(q) of this Section 3 shall be effected, if, (i) as of the
valuation date, the net capital of the Corporation is less than
1/17th of its aggregate indebtedness (such net capital and
aggregate indebtedness to be determined in accordance with
Paragraph (b) of Section 3 of Article VI), or (ii) at the time
that the notice of conversion pursuant to such Paragraph (q) is
mailed by the holder of such shares, the Corporation shall have
mailed to such holder a notice of redemption, pursuant to
Paragraph (i) of this Section 3, of such shares, or (iii) any
right or option on the part of the Corporation to purchase, or
to designate a purchaser for, such shares, pursuant to the
provisions of Section 1 of Article VI, remains outstanding, or
(iv) there are no authorized but unissued shares or treasury
shares available in the quantity required for such conversion,
or (v) the Board of Directors determines, in its sole
discretion, on or before the valuation date, that the proposed
conversion would be unfair or inequitable to other shareholders
of the Corporation.
(t) Nothing in this Section 3 shall limit any right of
the Corporation conferred in this Certificate of Incorporation
or by law to purchase any shares of the preferred stock.
(u) Except as provided in Section 2 of this Article IV,
or as otherwise required by the laws of the State of Delaware,
the holders of shares of preferred stock shall have, with
respect to such shares, no right or power to vote on any
question or in any proceeding or be represented at, or to
receive notice of, any meeting of stockholders.
PART V - COMMON STOCK
(v) Except as provided in Section 2 of this Article IV,
and subject to the provisions of Section 7 of Article VI, all
rights to vote and all voting power (including, without
limitation, the right to elect directors) shall be vested
exclusively in the shares of Common Stock.
(w) The dividend rights of holders of Common Stock
shall be as set forth in Paragraphs (e) and (f) of this Section
3 and all rights of holders of Common Stock upon liquidation,
dissolution or winding up of the Corporation shall be
determined in accordance with Paragraph (g) of this Section 3.
SECTION 4. Certain Definitions. For the purposes of this
Certificate of Incorporation, or of any certificate filed by this
Corporation with the Secretary of State of Delaware (unless otherwise
expressly provided in any such certificate):
(a) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding shares
held by the Corporation or a subsidiary;
(b) Any class or classes of stock of the Corporation
shall be deemed to rank junior to the 3% Preferred Stock or the
Participating Preferred Stock, as the case may be, either as to
dividends or upon liquidation, if the rights of the holders of
such class or classes shall be subject or subordinate to the
rights of the holders of the 3% Preferred Stock or the
Participating Preferred Stock, as the case may be, in respect
of the receipt of dividends or of distribution of amounts upon
liquidation, dissolution or winding up, as the case may be; and
(c) The term "holder" or "stockholder" shall mean a
legal or beneficial owner of shares of capital stock of the
Corporation and, unless the context indicates otherwise,
includes, without limitation, the legal representative of a
deceased or incompetent natural person and an involuntary
transferee of shares of the capital stock of the Corporation
referred to in Paragraph (e) of Section 1 of Article VI.
ARTICLE V
RESTRICTION ON DIVIDENDS
No dividend shall be declared or paid which shall impair the capital
of the Corporation nor shall a ny distribution of assets be made to any
stockholder unless the value of the assets of the corporation remaining after
payment or distribution is at least equal to the aggregate of its debts,
liabilities and capital. A director shall be fully protected in relying in
good faith upon the books of account of the Corporation or statements prepared
by any of its officers or by independent public accountants as to the value
and amount of the assets, liabilities, net profits, capital stock and surplus
of the corporation, or any other facts pertinent to the existence and amount
of surplus or other funds from which dividends might properly be declared and
paid.
ARTICLE VI
RIGHTS AND OPTIONS OF CORPORATION TO PURCHASE
SHARES OF CAPITAL STOCK FROM HOLDERS THEREOF
SECTION 1. When Rights and Options Arise. In order to enable the
Corporation to qualify for membership, membership privileges or other
privileges on any of the various securities exchanges, boards of trade,
commodities exchanges, clearing corporations or associations and/or other
similar institutions located within or without the United States and to
continue so qualified in good standing, and in order to insure that the
business of the Corporation will be carried on in a manner consonant with the
Corporation's responsibilities to the public as an organization so qualified,,
the shares of capital stock of the Corporation shall be issued only in the
name of the legal owner, and no transfer of such shares shall be effected
except on the stock books of the Corporation upon surrender of the stock
certificates duly endorsed; and all shares of capital sock of the Corporation
shall at all times be held subject to all of the agreements, conditions and
restrictions set forth in this Certificate of Incorporation, as amended from
time to time, the provisions of which shall at all times apply equally both to
an original holder of shares and to each and every subsequent holder thereof,
and each holder of capital sock, by the acceptance of a stock certificate
representing shares of the Corporation's capital stock, agrees with the
Corporation and with each other holder of capital stock, in consideration of
such agreement of each such other holder of capital stock, to such agreements,
conditions and restrictions, and as follows with respect to the matters set
forth in the following Paragraphs (a) through (g) of this Section 1:
(a) Except as otherwise provided in Section 5 of Article VII,
in the event of the death, adjudication of incompetency, bankruptcy
or insolvency of any holder of capital stock of the Corporation, at
the option of the Board of Directors, the Corporation shall have the
sole right and option to purchase the shares of capital stock of the
Corporation owned by the deceased, incompetent bankrupt or insolvent
holder for a period commencing on the date of death, adjudication of
incompetency, bankruptcy or insolvency of such holder and terminating
90 days after (i) the date the Corporation receives written notice at
its principal place of business of such death, adjudication,
bankruptcy or insolvency, or (ii) the date the Corporation mails
written notice to such holder, his legal representative or trustee in
bankruptcy, b first class mail sent to the last known address of such
holder, that the Corporation is on notice of such death,,
adjudication, bankruptcy or insolvency, whichever date first occurs.
(b) Except as provided in Section 9 of this Article VI,
whenever and as often as any holder of capital stock of the
Corporation in his lifetime, or in the event of his death or
incompetency his legal representative (after expiration of the option
period prescribed in Paragraph (a) of this Section 1 without the
Corporation's having exercised its said right and option), shall
desire to sell, assign, transfer or otherwise dispose of, with or
without consideration, any shares of capital stock of the
Corporation, such holder or legal representative, as the case may be,
shall notify the Corporation in writing at its principal place of
business to such effect, stating the number and class of shares which
such holder or legal representative desires to sell, assign, transfer
or otherwise dispose of and the name of the person to whom it is
desired to make such sale, assignment, transfer or other disposition.
Upon receipt of such notice, the Corporation, at the option of the
Board of Directors, shall have the sole right and option, for a
period of 90 days from the date of receipt of such notice, or, if no
such notice is given, for a period of 90 days from the date the
certificate or certificates representing the shares in question are
presented to the Corporation for transfer, to purchase the shares of
capital stock of the Corporation desired to be sold, assigned,
transferred or otherwise disposed of. No holder of capital stock of
the Corporation shall have the right to sell, assign, transfer or
otherwise dispose of an shares of such capital stock, or give the
notice provided for in this Paragraph (b), during the period any
option provided for in this Section 1 remains outstanding.
(c) Whenever it is determined by the Corporation that any
holder of capital stock of the Corporation has violated any agreement
made by such holder with the Corporation, at the option of the Board
of Directors the Corporation shall have the sole right and option to
purchase the shares of capital stock of the Corporation held by such
holder for a period of 90 days from the date the Corporation mails
written notice of such determination to such holder, by first class
mail sent to the last known address of such holder; and whenever it
has been determined by one of the various securities exchanges,
boards of trade, commodities exchanges, clearing corporations or
associations and/or similar institutions with which the Corporation
has membership privileges or other privileges, that any holder of
capital stock of the Corporation has violated any agreement made by
such holder therewith, or any such holder shall have been suspended
or expelled from, or approval of him as a holder of such capital stock
shall have been refused, terminated or withdrawn by any of such
securities exchanges, boards of trade, commodities exchanges,
clearing corporations or associations and/or similar institutions,
the Corporation, at the option of the Board of Directors, shall have
the sole right and option to purchase the shares of capital stock
held by such holder for a period of 90 days from the date the
Corporation receives written notice at its principal place of
business of such determination, suspension, expulsion or refusal,
termination or withdrawal of approval, as the case may be, or from
the date the Corporation mails written notice, as aforesaid, that the
Corporation is on notice thereof, whichever date first occurs.
(d) Whenever any holder of Common Stock of the Corporation,
for reasons other than those set forth in Paragraphs (a),(c) or (g)
9f this Section 1, ceases to be either a member or an allied member
of the New York Stock Exchange or ceases to be an officer or employee
of the Corporation actively engaged in its business and devoting the
major portion of his time thereto (unless such holder is in active
government service or unless the health of such holder does not
permit such active engagement in the business of the Corporation), a
the option of the Board of Directors the Corporation shall have the
sole right and option to purchase the shares of Common Stock of the
Corporation held by such holder (i) in the case of such holder so
ceasing to be a member or an allied member of the New York Stock
Exchange, for a period of 90 days from the date the Corporation
receives written notice at its principal place of business of such
cessation, or from the date the Corporation receives written notice
at its principal place of business of such cessation, or from the
date the Corporation mails written notice to the holder, by first
class mail sent to the last known address of such holder, by first
class mail sent to the last known address of such holder, that the
Corporation is on notice of such cessation, whichever date first
occurs, and (ii) in the case of such holder ceasing to be an officer
or employee of the Corporation so engaged, for a period of 90 days
from the date the Corporation mails written notice, as aforesaid,
that it has determined that the holder has ceased to be so engaged.
(e) Except as provided in Section 9 of this Article VI,
whenever the shares of capital stock of any holder thereof are
involuntarily transferred by operation of law or otherwise, other
than by a transfer (i) occasioned by the death or adjudication of
incompetency of such holder, or (ii) occasioned by the death of a
legal representative, at the option of the Board of Directors the
Corporation shall have the sole right and option to purchase from the
transferee (hereinafter called the "involuntary transferee") the
shares of capital stock of the Corporation acquired by the
involuntary transferee, or a period of 90 days from the date the
Corporation receives written notice at its principal place of
business of such transfer or from the date the Corporation mails
written notice to the transferee, by first class mail sent to the
last known address of the holder whose shares have been so
transferred, that the Corporation is on notice of such transfer,
whichever date first occurs.
(f) Whenever the Board of Directors of the Corporation shall
determine that it is necessary or desirable for the welfare of the
Corporation or for the attainment of the corporate objectives set
forth in this Certificate of Incorporation that any holder of capital
stock of the Corporation shall cease to be such a holder thereof, the
Corporation shall have the sole right and option to purchase the
shares of capital stock of the Corporation held by such holder, for
a period of 90 days from the date the Corporation mails notice of
such determination and the confirmation thereof to such holder, by
first class mail sent to the last known address of such holder.
(g) Whenever any holder of Common Stock of the Corporation
resigns in writing as an officer or employee of the Corporation or
retires under any retirement plan or policy of the Corporation, then,
at the option of the board of Directors, the Corporation shall have
the first right and option to purchase the shares of Common Stock of
the Corporation held by such holder (i) in the case of such holder
resigning, for a period of 90 days from the date of receipt of
written notice of resignation, irrespective of the date such
resignation takes effect, and (ii) in the case of such holder
retiring under any such plan or policy, for a period of 90 days prior
to the date such retirement is to become effective.
SECTION 2. Failure to Exercise Rights and Options Does Not Operate
as Waiver. Failure to exercise any right and option accruing pursuant to any
of the Paragraphs of Section 1 of this Article VI shall not prevent the
exercise of any right and option subsequently accruing pursuant to any one of
the said Paragraphs, whether such subsequent right and option shall accrue
pursuant to the same or a different Paragraph.
SECTION 3. Consideration to be Paid by Corporation. The
consideration to be paid by the Corporation for the purchase of any shares of
capital stock purchased by the Corporation upon the exercise by it of any
right and option arising pursuant to any one of the Paragraphs of Section 1 of
this Article VI shall be as follows.
(a) Except as provided in Paragraphs (c) and (d) of this
Section 3, the consideration for the purchase of shares of capital
stock of the Corporation shall be paid in full in cash at the net
book value of the shares being purchased determined as provided in
Sections 5 and 6 of this Article VI, except that the consideration for
shares of Participating Preferred Stock so purchased shall not be
less than $10 per share; provided however, that if, as a result of
such purchase, the purchase of all other shares of its capital stock
which the Corporation has given written notice pursuant to Section 7
of this Article VI that it will purchase and the purchase of all
other shares of its capital stock theretofore tendered under Article
VII, the net capital of the Corporation would be reduced to an amount
less than 1/15th of its aggregate indebtedness, then the
consideration to be paid may at the election of the Board of
Directors of the corporation be paid entirely in cash, entirely in
evidence of indebtedness of the Corporation, or partly in cash and
partly in such evidence of indebtedness in such proportions as the
Corporation may determine. Indebtedness of the Corporation, the
evidence of which is included in the consideration paid for shares
of capital stock pursuant to this Paragraph (a), shall be
subordinated to general creditors of the Corporation (and may be
junior to, or equal with, any other indebtedness of, the Corporation
which qualifies as subordinated indebtedness for the purposes of
determining net capital), shall bear interest at the rate of not less
than 5% per annum, and shall have a maturity date of not more than
one year from the date of issuance, all as determined by the Board of
Directors of the Corporation, and the Corporation shall have the
right of prepayment of all or any part thereof at an time without
premium.
(b) All determinations of the net capital of the Corporation
and its aggregate indebtedness shall be made by the Corporation in
accordance with any rule or regulation of the New York Stock Exchange
relating to capital requirements for member organizations in effect
at the time of determination, and such determination shall be
conclusive and binding upon the Corporation and all holders of
capital stock of the Corporation.
(c) Nothing contained in the preceding paragraphs of this
Section 3 shall be construed to prevent the Corporation from paying
the consideration for the purchase of shares in a manner not provided
for in said paragraphs if mutually agreed to by the Corporation and
the holder of such shares.
(d) In the event that a holder of capital stock receives a
bona fide offer in writing from another holder of capital stock to
purchase shares of capital stock for cash and desires to sell shares
of capital stock pursuant to such offer and notice thereof is given
to the Corporation pursuant to the provisions of Paragraph (b) of
Section 1 of this Article VI, which notice shall include the price
offered, then, in the event that the Corporation desires to exercise
its right and option to purchase such shares pursuant to said
Paragraph, the consideration to be paid therefor by the Corporation
or by a person designated by the Corporation pursuant to Section 4 of
this Article VI, shall be cash in the amount of the net book value of
the shares in question, determined in accordance with the provisions
of Sections 5 and 6 of this Article VI, or the price which the person
desiring to purchase the shares of capital stock has offered to pay,
whichever is lower.
SECTION 4. Designation by Corporation of Other Purchasers and
Consideration to be Paid by Them. Whenever the Corporation shall be entitled
to purchase any shares of its capital stock upon the exercise of any right and
option arising pursuant to the provisions of Section 1 of this Article VI, the
Corporation may designate such other person or persons as purchasers of all or
any part of such shares as may be satisfactory to any of the various
securities exchanges, boards of trade, commodities exchanges, clearing
corporations or associations and/or other similar institutions with which the
Corporation has membership privileges or other privileges whose approval of a
holder of such shares is required. The consideration for the purchase of any
shares of capital stock of the Corporation purchased by any person so
designated, whether the shares being purchased by such person represent all or
only a part of the aggregate number of shares being purchased and irrespective
of whether, in the latter case, the Corporation is purchasing part of the
shares for consideration other than cash, shall, except as otherwise provided
in Paragraph (d) of Section 3 of this Article VI, be paid in cash at the net
book value of the shares being purchased determined in accordance with the
provisions of Sections 5 and 6 of this Article VI, except that the
consideration for shares of Participating Preferred Stock so purchased shall
not be less than $10 per share.
SECTION 5. Determination of Net Book Value.
(a) Time of Determination of Net Book Value; Termination of Rights.
The net book value of any shares of the capital stock of the Corporation
purchasable upon the exercise of any right and option arising pursuant to the
provisions of Section 1 of this Article VI shall be determined as of a date
determined by the Board of Directors, which date shall be within 100 days
after the date on which the Corporation mails notice pursuant to Section 7 of
this Article VI of its election to exercise such right and option (such date
of determination being in this Article VI referred to as the "valuation date").
(b) Method of Determination of Net Book Value. The net book value
of shares of capital stock of the Corporation for the purposes of Article IV,
of this Article VI, and of Article VII, shall be determined by the Corporation
as follows:
(i) Shares of Common Stock and Participating Preferred Stock.
In determining net book value, shares of Common Stock and shares of
Participating Preferred Stock shall be treated identically. The net
book value of each share of Common Stock and each share of
Participating Preferred Stock shall be determined in accordance with
generally accepted accounting principles but shall be adjusted up or
down, as the case may be,
(A) to reflect the difference in the market value of all
memberships owned by the Corporation or covered by so-called
"a-b-c agreements" and the book value thereof;
(B) to reflect the difference in the market value of all
securities and commodities owned by the Corporation and the
book value thereof;
(C) to reflect the book value (with adjustments
substantially similar to the adjustments described in this
Paragraph (b)(i) of the assets of any subsidiary of the
Corporation;
(D) to reflect the unrealized gain or loss on short-sale
commitments;
(E) to provide appropriate accruals and reserves for,
among other things, all taxes (including all taxes based on
income including net unrealized appreciation), bonuses and all
other employee compensation (including compensation determined
and payable after the end of the then current fiscal year),
reserves for contingent liabilities and any other reserves
which the Board of Directors of the Corporation may deem
proper, and all other items of income and expense attributable
to the period prior to the date as of which the determination
is made which the Board of Directors of the Corporation may
deem proper; and
(F) to exclude any value whatsoever for customers'
lists, the records and files, leases and good will appertaining
to the business of the Corporation.
(ii) Shares of 3% Preferred Stock. The net book value of each
share of 3% Preferred Stock shall be the amount which would be
received by the holder of such shares, under the provisions of
Paragraph (c) of Section 3 of Article IV, in the event of a
liquidation of the Corporation.
SECTION 6. Dispute as to Net Book Value. The determination of net
book value by the Corporation shall be conclusive and binding upon all holders
of capital stock of the Corporation unless a holder whose shares are being
purchased, redeemed or converted, as the case may be, notifies the Corporation
in writing not less than ten days subsequent to the date on which the
Corporation has notified the holder of such determination that the
Corporation's determination of the net book value of the shares to be
purchased, redeemed, converted, or issued upon conversion, as the case may be,
is disputed. In the event of such notification by a stockholder, such net
book value shall be determined (as of the same date as the disputed
determination) by a firm of independent public accountants selected by the
Board of Directors of the Corporation (which may be the firm which regularly
examines the statement of financial condition of the Corporation) who are to
follow the standards set forth in Section 5(b) of this Article VI; provided,
however, that in computing such net book value the independent public
accountants shall be bound by the determinations of the Board of Directors as
to the value of any assets or the amounts of any liabilities which, in the
opinion of the Board of Directors, are not readily ascertainable; and the
determination of such net book value by such independent public accountants
shall be conclusive and binding upon the Corporation and such holder. The
expense of any such determination by such accountants shall be shared equally
by such objecting stockholder and the Corporation.
SECTION 7. Method of Exercising Corporation's Right and Option to
Purchase Shares. The method of exercising any right and option arising
pursuant to the provisions of Section 1 of this Article VI to purchase any
shares of capital stock of the Corporation shall be effected by the
Corporation as follows:
(a) The Corporation shall mail by first class mail to the
address of the holder of the shares subject to such right and option
as the same shall appear on the books of the Corporation as of the
date such notice is mailed, not later than the close of business on
the last business day in the option period, a written notice advising
of the election to exercise such right and option, stating the names
of the purchasers, the number and class of shares to be purchased by
each of them and the valuation date. After the net book value of
such shares is determined, the Corporation shall mail as aforesaid a
second notice to such holder, which notice shall state the price per
share to be paid by such purchasers and the date upon which payment
of the consideration for such shares will be made at the principal
place of business of the Corporation, which date shall be within 60
days from the valuation date. Such second notice shall be mailed not
less than 30 days in advance of such payment date; provided, however,
that the Corporation may, after mailing such second notice fixing the
payment date and after the right of such holder to dispute net book
value under Section 6 of Article VI has expired, accelerate the
payment date by the mailing as aforesaid a third notice to such
holder, which notice shall state the date (which shall be not less
than five nor more than ten days after the mailing of such notice) to
which the payment date shall be accelerated. The holder of the
shares being so purchased shall deliver the certificate or
certificates representing such shares, properly endorsed for
transfer, to the Corporation on the payment date specified in such
second notice, against payment therefor.
(b) In the event that there shall be a dispute as to the net
book value of shares being purchased pursuant to this Article VI and
a determination thereof is to be made by a firm of independent public
accountants pursuant to Section 6 of this Article VI, such payment
date shall be postponed until such determination has been made and the
Corporation has mailed, by first class mail to the last known address
of the disputant, written notice of such determination and of the
date upon which the payment of the consideration for the shares in
question is to be made, which notice shall be given not more than ten
days after such determination has been made and shall specify a date
for such payment not less than five and not more than ten days
following the mailing of such notice.
(c) Any documentary stamp tax or transfer tax payable in
connection with the purchase of shares pursuant to this Article VI
shall be paid by the purchasers of such shares. If, on the payment
date, a holder shall fail to deliver the certificate or certificates
for the shares being purchased from him properly endorsed for
transfer, the consideration to be paid for such shares shall be set
aside by the Corporation, separate and apart from its other funds in
a special account for the benefit of such holder, to be paid to such
holder upon surrender of the certificate or certificates for such
shares properly endorsed for transfer. In the event that such right
and option are so exercised and the consideration is so deposited by
a person or persons other than the Corporation, and such holder shall
fail to deliver the certificate or certificates as aforesaid, then
such consideration shall be returned to such person or persons and the
Corporation shall substitute from its funds an amount equal to such
consideration and shall set aside such funds as aforesaid. The
shares as to which such right and option have been so exercised and
for the purchase of which the consideration has been so deposited
shall have no further rights, including, without limitation, any
dividend rights. If such holder of shares of capital stock shall
not, within six years after the payment date, claim the amount
deposited with respect to the purchase of his shares, the moneys so
set aside by the Corporation for his benefit shall at the option of
the Board of Directors revert to the general funds of the
Corporation, and thereupon such funds shall become contributions to
the capital of the Corporation and the holder of such shares shall
have no further claim or right to such funds.
SECTION 8. Right and Option Exercisable with Respect to All or Any
Part of the Shares Subject Thereto. Whenever the Corporation shall be
entitled to purchase any shares of its capital stock upon the exercise of any
right and option arising pursuant to the provisions of Section 1 of this
Article VI, such right and option shall be exercisable with respect to all or
any part of the shares of capital stock subject thereto, whether the purchaser
is the Corporation or a person or persons designated by the Corporation
pursuant to the provisions of Section 4 of this Article VI.
SECTION 9. Right of Holder to Transfer Shares Upon Non-Exercise by
Corporation of Right to Purchase. Whenever, pursuant to the provisions of
Paragraph (b) or (e) of Section 1 of this Article VI, the Corporation shall
have a right and option to purchase any shares of capital stock of any holder
thereof and the Corporation shall fail to five notice in the manner prescribed
in Section 7 of this Article VI that it or its designee or designees will
purchase such shares, then such holder, upon the expiration of the 90 day
period during which the Corporation shall have had such right and option,
shall be free for a period of 90 days to sell, assign, transfer or otherwise
dispose of such shares on the books of the Corporation to any person or
persons satisfactory to the various securities exchanges, boards of trade,
commodities exchanges, clearing corporations or associations and/or other
similar institutions with which the Corporation has membership privileges or
other privileges, and which institutions' approval of a holder of such shares
is required; provided, however, that such shares shall, after such transfer,
or, if not so transferred, after the expiration of the period of 90 days
during which such holder shall have been free so to transfer them, again become
subject to all of the provisions of this Article VI.
SECTION 10. Conditions Under Which Purchase May Be Postponed. The
Corporation shall not be permitted on the payment date referred to in
Paragraph (a) of Section 7 of this Article VI to purchase shares of capital
stock which have been the subject of a notice sent by the Corporation pursuant
to the provisions of Section 1 of this Article VI unless as of such date (i)
the Corporation has funds legally available to purchase all shares of capital
stock which are the subject of such a notice and all other shares of capital
stock that may have been tendered to the Corporation pursuant to this Article
VI, or which it may be obligated to purchase pursuant to Article VII or
pursuant to any agreements entered into pursuant to Paragraph (i) of Section 1
of Article X and not theretofore purchased by the Corporation, whether or not
the obligation of the Corporation to purchase any or all of such shares of
capital stock has been postponed pursuant to the provisions of this Section 10
or Section 4 of Article VII and (ii) the purchase of all such shares of
capital stock would not be contrary to, or result in any violation of, any
provisions then in effect of any constitution, rule or regulation of, or any
policy of, any of the various securities exchanges, boards of trade,
commodities exchanges, clearing corporations or associations and/or other
similar institutions with which the Corporation has membership privileges or
other privileges or any rule or regulation of the Securities and Exchange
Commission or any other governmental agency having jurisdiction. If the
Corporation is not permitted to purchase such shares, the Corporation shall so
advise the holder thereof, in writing by first class mail to the holder's last
known address, and the obligation of the Corporation to purchase such shares
and the payment date referred to in Paragraph (a) of Section 7 of this Article
VI shall be postponed until such time as the provisions of this Section 10
permit such purchase and the purchase of all such other shares and at such
time the Corporation shall so advise the holder of such shares in writing in
the manner aforesaid and thereupon each holder of such shares shall have the
obligation to tender for sale to the Corporation, and the Corporation shall be
required to purchase, such shares for the consideration which would have been
paid had the Corporation not been prevented from purchasing such shares by
reason of the provisions of this Section 10.
SECTION 11. Waiver by Corporation. The Corporation, in any
particular case or cases, may waive all or any of its rights and options under
any one or more of the provisions of this Article VI or of Article VII, but
any such waiver shall apply only to the case or cases wherein such rights or
options are expressly waived and no such waiver shall be construed to apply to
any other case or cases; provided, however, that the Corporation may not waive
any provision if the carrying out of the transaction contemplated by the
waiver would be contrary to, or result in any violation of, any law or any
provision then in effect of any constitution, rule or regulation of, or any
policy of, any of the various securities exchanges, boards of trade,
commodities exchanges, clearing corporations or associations and/or similar
institutions with which the Corporation has membership privileges or other
privileges, or any rule or regulation of the Securities and Exchange
Commission or any other governmental agency having jurisdiction.
SECTION 12. Other Arrangements. Nothing in this Article VI or
Article VII shall be deemed to prohibit or affect any contractual arrangements
which the Corporation may make from time to time with any of its shareholders
to purchase all or any part of the shares held by such holders.
ARTICLE VII
RIGHT OF HOLDERS OF CAPITAL STOCK TO REQUIRE
CORPORATION TO PURCHASE SHARES
SECTION 1. Exercise of Right. Except as provided in Section 4 of
this Article VII, every holder of shares of capital stock of the Corporation,
other than shares which are the subject of a notice of redemption or a notice
of conversion given by the Corporation pursuant to the applicable provisions
of Section 3 of Article IV, shall have the right upon notice in writing to the
Corporation to require the Corporation to purchase all, but not any part, of
the shares of capital stock of the Corporation held by such holder, on the
terms and subject to the restrictions, limitations and conditions hereinafter
prescribed in this Article VII; and whenever any such holder gives such notice
as aforesaid and shall tender, with such notice, all of his shares of capital
stock, properly endorsed for transfer, the Corporation shall be obligated, on
such terms and subject to such restrictions, limitations and conditions, to
purchase all of the shares of capital stock of the Corporation held by such
holder and such holder shall be obligated, on such terms and subject to such
restrictions, limitations and conditions, to sell all of such shares.
SECTION 2. Consideration to be Paid. The consideration to be paid
by the Corporation for the purchase of shares of capital stock purchased
pursuant to the provisions of this Article VII shall be the net book value of
the shares being purchased, determined by the Corporation in the manner
prescribed in Paragraph (b) of Section 3 of Article VI. Such determination of
the shares' net book value by the Corporation shall be made as of the close
of the regular quarterly accounting period during which any holder of capital
stock gives notice as provided herein, unless such holder and the Corporation
shall jointly determine an earlier date (such date of determination being in
this Article VII referred to as the "valuation date"), and shall be conclusive
and binding upon the Corporation and all stockholders of the Corporation. The
consideration for the shares of capital stock to be purchased shall be paid at
the time of purchase entirely in cash; provided, however, that if as a result
of such purchase, the purchase of all other shares of capital stock
theretofore tendered as aforesaid and the purchase of all other shares of its
capital stock which the Corporation has given written notice pursuant to
Section 7 of Article VI that it will purchase, the net capital of the
Corporation would be reduced to an amount less than 1/15th of its aggregate
indebtedness (such determination of net capital and aggregate indebtedness to
be made by the Corporation in the manner provided in Paragraph (b) of Section
3 of Article VI, and to be conclusive and binding upon such holder), then the
consideration to be paid may at the election of the Board of Directors of the
Corporation be paid entirely in cash, entirely in evidence of indebtedness of
the Corporation, or partly in cash and partly in such evidence of
indebtedness, in such proportions as the Corporation may determine.
Indebtedness of the Corporation, the evidence of which is included in the
consideration paid for shares of capital stock purchased pursuant to this
Section 2, shall be subordinated to general creditors of the Corporation (and
may be junior to, or equal with, any other indebtedness of the Corporation
which qualifies as subordinated indebtedness for the purpose of determining
net capital), shall bear interest at the rate of not less than 5% per annum,
and shall have a maturity date of not more than one year from the date of
issuance, all as determined by the Board of Directors of the Corporation, and
the Corporation shall have the right of prepayment of all or any part thereof
at any time without premium. Nothing in this Section 2 shall be construed to
prevent the Corporation from paying the consideration for the purchase of
shares in a manner not provided for in this Section 2 if mutually agreed to by
the Corporation and the holder of the shares being purchased.
SECTION 3. Notification and Payment. After the net book value of
the shares to be purchased by the Corporation is determined, the Corporation
shall mail the holder thereof by first class mail a notice stating the net
book value of such shares and the date designated by the Board of Directors
for the purchase of such shares (the "payment date"), which date shall be
within 60 days after the valuation date. Such notice shall be mailed not less
than five days in advance of the payment date. On the payment date, the
Corporation shall pay such holder the purchase price for such shares
determined in accordance with Section 2 of this Article VII against delivery
of such shares duly endorsed for transfer.
SECTION 4. Conditions Under Which Corporation's Obligations May Be
Postponed. The Corporation's obligation to purchase shares of capital stock
tendered pursuant to the provisions of this Article VII shall be postponed
under the following conditions:
(a) The Corporation shall not be permitted on the payment date
to purchase any shares of capital stock tendered pursuant to the
provisions of this Article VII unless as of such date (i) the
Corporation has funds legally available to purchase all shares of
capital stock so tendered and all other shares of capital stock that
may have been tendered and all other shares of capital stock that may
have been tendered to the Corporation pursuant to this Article VII
and to Article VI, or which it may be obligated to purchase pursuant
to any agreements entered into pursuant to Paragraph (i) of Section 1
of Article X and not theretofore purchased by the Corporation,
whether or not the obligation of the Corporation to purchase any or
all of such shares of capital stock has been postponed pursuant to
the provisions of Section 10 of Article VI or this Section 4 and (ii)
the purchase of all such shares of capital stock would not be
contrary to, or result in any violation of, any provisions then in
effect of any constitution, rule or regulation of, or any policy of,
any of the various securities exchanges, boards of trade, commodities
exchanges, clearing corporations or associations and/or other similar
institutions with which the Corporation has membership privileges or
other privileges or any rule or regulation of the Securities and
Exchange Commission or any other governmental agency having
jurisdiction.
(b) If at the time any shares of capital stock are tendered
pursuant to the provisions of this Article VII, the Corporation is
not permitted to purchase such shares by reason of Paragraph (a) of
this Section 4, the Corporation shall so advise the holder thereof,
in writing by first class mail to the holder's last known address,
and the obligation of the Corporation to purchase such shares and the
payment date referred to in Section 3 of this Article VII shall be
postponed until such time as the provisions of this Section 4 permit
such purchase and the purchase of all such other shares and at such
time the Corporation shall so advise the holder of such shares in
writing in the manner aforesaid and thereupon each holder of such
shares shall have the right, but not the obligation, to tender for
sale to the Corporation, and, if such shares are tendered, the
Corporation shall be required to purchase, such shares for the
consideration which would have been paid had the Corporation not been
prevented from purchasing such shares by reason of Paragraph (a) of
this Section 4.
SECTION 5. Conflict with Rights of Corporation under Article VI.
Nothing contained in this Article VII shall be construed to limit in any way
the rights of the Corporation under Article VI hereof, and whenever the
Corporation shall be entitled to purchase any shares of its capital stock from
a holder thereof upon the exercise of any right and option arising pursuant to
the provisions of Section 1 of such Article VI, all rights and obligations
both of such holder and the Corporation under this Article VII shall be
suspended until either the Corporation shall exercise its right and option
under such Article VI, in which case all such rights and obligations under
this Article VII with respect to such shares shall cease and terminate, or the
Corporation shall have failed to exercise such right and option within the
period for such exercise, in which case, except as provided in Section 6 of
this Article VII, all such rights and obligations under this Article VII with
respect to such shares shall be reinstated as of the date of such expiration
and be the same as they existed prior to the time when the right and option
arose under such Article VI; provided, however, that in the event that a
holder of shares of capital stock of the Corporation who has given notice
pursuant to the provisions of Section 1 of this Article VII dies or is
adjudicated an incompetent prior to the time when any purchaser or purchasers
(including the Corporation) are obligated to purchase the shares of capital
stock of such holder specified in such notice, the legal representative of
such holder shall continue to have all the rights and be subject to all the
obligations arising pursuant to the provisions of this Article VII with
respect to such shares that such holder would have had or been subject to, and
the Corporation shall have no right and option under the provisions of
Paragraph (a) of Section 1 of Article VI hereof with respect to such shares by
reason of the death or incompetency of such holder.
SECTION 6. Designation by Corporation of Other Purchasers and
Consideration to be Paid by Them. Any obligation of the Corporation to
purchase any shares of capital stock of any holder thereof pursuant to the
provisions of this Article VII shall terminate if any person or persons
designated by the Corporation who are satisfactory to all of the various
securities exchanges, boards of trade, commodities exchanges, clearing
corporations or associations and/or other similar institutions with which the
Corporation has membership privileges or other privileges, and which
institutions' approval of a holder of such shares is required, become
committed to purchase such shares for cash at the purchase price which the
Corporation would otherwise be obligated to pay for such shares.
ARTICLE VIII
INCORPORATOR
The name and mailing address of the incorporator of the Corporation
is as follows:
<TABLE>
<S> <C>
John W. Weiser.................. 20 Exchange Place
New York, New York 10005
</TABLE>
ARTICLE IX
INITIAL DIRECTORS
The names and mailing addresses of the persons who are to serve as
Directors until the first annual meeting of stockholder or until their
successors are elected and qualify are as follows:
<TABLE>
<S> <C>
Eaton Taylor..................... 45 Montgomery Street
San Francisco, California 94106
Dean Witter, Jr.................. 14 Wall Street
New York, New York 10003
Thomas W. Witter................. 45 Montgomery Street
San Francisco, California 94106
Forrest E. Haver................. 45 Montgomery Street
San Francisco, California 94106
Howard G. Hawkins, Jr............ 45 Montgomery Street
San Francisco, California 94106
</TABLE>
ARTICLE X
BOARD OF DIRECTORS
SECTION 1. Powers of the Board of Directors. In furtherance and not
in limitation of the powers conferred by statute, the Board of Directors of
the Corporation is expressly authorized:
(a) To make, alter, amend or repeal from time to time any of
the By-laws of the Corporation, except such of them as shall have
been made from time to time by the holders of shares of stock
entitled to vote thereon; provided, however, that any By-Law made by
the Board of Directors may be altered, amended or repealed by the
holders of capital stock of the Corporation entitled to vote thereon
at any annual meeting or at any special meeting called for that
purpose.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus and
net profits of the Corporation, including the determination of the
amount of working capital required, to set apart out of any of the
funds of the Corporation, whether or not available for dividends, a
reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
(d) To designate, by resolution passed by a majority of the
whole Board, one or more committees, each committee to consist of two
or more directors of the Corporation, which, to the extent provided
in the resolution designating the committee or in the By-Laws of the
Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, including, without limitation, the powers of the Board
of Directors referred to in Articles IV, VI and VII hereof to effect,
or which are related or incidental to, the redemption, conversion or
purchase of shares of the Corporation's capital stock, and may
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 provided in the By-Laws of the Corporation or
as may be determined from time to time by resolution adopted by the
Board of Directors.
(e) Subject to the approval of the holders of a majority of
the shares of the Common Stock outstanding, to grant rights or
options entitling the holders thereof to purchase from the
Corporation shares of its capital stock of any class or series (to be
evidenced by or in such instrument or instruments as shall be
approved by the Board of Directors); the terms upon which, the time
or times at or within which, and the price or prices at which any
such rights or options may be issued and any such shares may be
purchased from the Corporation upon the exercise of any such right or
option, shall be determined by the Board of Directors; provided,
however, that such price or prices at which such shares may be
purchased shall not be less than the net book value of such shares
(determined in accordance with Paragraph (b) of Section 5 of Article
VI) at the time such rights or options covering such shares are
issued; and further provided, that no action shall be taken under
this Paragraph (e) which would be contrary to, or result in any
violation of, any provisions then in effect of any constitution, rule
or regulation of, or any policy of, any of the various securities
exchanges, boards of trade, commodities exchanges, clearing
corporations or associations and/or other similar institutions with
which the Corporation has membership privileges or other privileges
or any rule or regulation of the Securities and Exchange Commission
or any other governmental agency having jurisdiction. In the absence
of actual fraud in the transaction, the judgment of the Board of
Directors as to the consideration for the issuance of such rights or
options and for the issuance of shares of capital stock upon exercise
thereof and the sufficiency of such consideration shall be
conclusive. No such rights or options shall be invalidated or in any
way affected by the fact that any director shall be a grantee thereof
or shall vote for the issuance of such rights or options to himself
or for any plan pursuant to which he may receive any such rights or
options.
(f) To adopt or assume such plans as may from time to time be
approved by it for the purchase by officers or employees of the
Corporation of shares of capital stock of the Corporation of any
class or series; the terms upon which, the time or times at or within
which, and the price or prices at which shares may be purchased from
the Corporation pursuant to such a plan shall be determined by the
Board of Directors in the plan; provided, however, that such price or
prices shall not be less than the net book value of such shares
(determined in accordance with Paragraph (b) of Section 3 of Article
VI) at the time of the adoption or assumption of such plan; and
further provided that no action shall be taken under this Paragraph
(f) which would be contrary to, or result in any violation of, any
provisions then in effect of any constitution, rule or regulation of,
or any policy of, any of the various securities exchanges, boards of
trade, commodities exchanges, clearing corporations or associations
and/or other similar institutions with which the Corporation has
membership privileges or other privileges or any rule or regulation
of the Securities and Exchange Commission or any other governmental
agency having jurisdiction. In the absence of actual fraud in the
transaction, the judgment of the Board of Directors as to the
consideration for the issuance of such shares and the sufficiency
thereof shall be conclusive. No such plan which is not at the time
of adoption or assumption unreasonable or unfair shall be invalidated
or in any way affected because any director shall be entitled to
purchase shares of capital stock of the Corporation thereunder and
shall vote for any such plan.
(g) To adopt or assume and carry out such plans as may from
time to time be approved by it for the distribution among the
officers or employees of the Corporation, or any of them, in addition
to their regular salaries or wages, of part of part of the earnings
of the Corporation in consideration for or in recognition of the
services rendered by such officers or employees or as an inducement
to future efforts. No such plan which is not at the time of adoption
or assumption unreasonable or unfair shall be invalidated or in any
way affected because any director shall be a beneficiary thereunder
or shall vote for any plan under which he may benefit or for any
distribution thereunder in which he may participate.
(h) To adopt or assume and carry out such pension, deferred
compensation, profit-sharing or retirement plans as may from time to
time be approved by it, providing for pensions, profit-sharing plan
benefits or retirement income for officers or employees of the
Corporation, in consideration for or in recognition of the services
rendered by such officers or employees or as an inducement to future
efforts. No such plan which i snot at the time of adoption or
assumption unreasonable or unfair shall be invalidated or in any way
affected because any director shall be a beneficiary thereunder or
shall vote for any plan under which he may benefit or for any
distribution thereunder in which he may participate.
(i) To authorize the Corporation, in order to facilitate
investment of trust funds in shares of capital stock of the
Corporation, to enter into agreements from time to time with
fiduciaries holding shares of capital stock of the Corporation or who
are about to become holders thereof, under the terms of which the
Corporation may undertake obligations, in addition to those contained
in, and which may be at variance with, the provisions of Article VII
hereof, to purchase shares of capital stock of the Corporation from
such fiduciaries, at such price and upon such other terms and
conditions as the Board of directors of the Corporation may determine
with respect to each such agreement; provided, however, that no such
agreement shall permit the purchase of shares unless (i) the
Corporation has funds legally available to purchase such shares, and
(ii) the purchase of such shares would not be contrary to, or result
in any violation of, any provisions then in effect of any
constitution, rule or regulation of, or any policy of, any of the
various securities exchanges, boards of trade, commodities exchanges,
clearing corporations or associations, and/or other similar
institutions with which the Corporation has membership privileges or
other privileges, or any rule or regulation of the Securities and
Exchange Commission or any other governmental agency having
jurisdiction.
(j) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of
the laws of the State of Delaware and of this Certificate of
Incorporation and to the By-Laws of the Corporation.
SECTION 2. Reliance on Books. A director shall be fully protected
in relying in good faith upon the books of account of the Corporation or
statement prepared by any of its officers or by independent public accountants
as to the value and amount of the assets, liabilities and/or net profits of
the Corporation or any other facts pertinent to the existence and amount of
surplus or other funds with which the Corporation's stock might properly be
purchased or redeemed.
ARTICLE XI
MEETINGS OF STOCKHOLDERS AND DIRECTORS;
CORPORATE BOOKS; ELECTION OF DIRECTORS; NOTICES
Meetings of holders of the capital stock of the corporation and of
the Board of Directors and of any committee thereof may be held outside the
State of Delaware if the By-Laws shall so provide. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the General
Corporation Law of Delaware, the meeting and vote of stockholders may be
dispensed with and such action may be taken with the written consent of the
holders of stock having not less than the minimum percentage of the total vote
required by statute for the proposed corporate action unless this Certificate
of Incorporation or the By-Laws require a greater percentage for such action,
in which case the consent shall be that of the holders of such greater
percentage; provided that prompt notice is given to all the stockholders of the
taking of such corporate action without a meeting and by less than unanimous
written consent. Any action required or permitted to be taken at any meeting
of the Board of directors, or of any committee thereof, may be taken without a
meeting as provided by statute, if the By-Laws of the Corporation shall so
provide. Except as otherwise provided by law, the books of the Corporation
may be kept outside the State of Delaware at such place or places as may be
designated from time to time by the Board of directors or in the By-Laws of
the Corporation. the elections of directors need not be by ballot unless the
By-Laws of the Corporation shall so provide. Any notice required by this
Certificate of Incorporation to be given by first class mail may instead be
delivered to the addressee in person.
ARTICLE XII
TRANSACTIONS WITH DIRECTORS OR OFFICERS
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose, if:
(1)The material facts as to his interest and as to the contract
or transaction are disclosed or are known to the board of directors
or the committee, and the board or committee in good faith authorizes
the contract or transaction by a vote sufficient for such purpose
without counting the vote of the interested director or directors; or
(2)The material facts as to his interest and as to the contract
or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3)The contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of
directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
ARTICLE XIII
INDEMNIFICATIONS
the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer
or member of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not apposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of an action, suit or proceeding by judgment, order, settlement,
conviction, or upon a pleas of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interest of the Corporation, or, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer of member of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which he Court of Chancery
of the State of Delaware or such other court shall deem proper.
To the extent that any person referred to in the preceding two
paragraphs has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to therein, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
The Corporation may, to the extent deemed advisable by the Board of
directors, indemnify any person who is or was an employee or agent (other than
a director or officer) of the Corporation, or is or was serving at the request
of the Corporation as an employee or agent (other than a director, officer or
member) of another corporation, partnership, joint venture, trust or other
enterprise if such person would be entitled to such indemnity under the
provision of the preceding three paragraphs if such person had been a director
of officer of the Corporation or a director, officer or member of such other
corporation, partnership, joint venture, trust or other enterprise.
Any indemnification under the first two paragraphs or under the
fourth paragraph of this Article XIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, member, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth therein. such determination shall be made (1)
by the Board of directors of the Corporation by a majority vote of a quorum
(as defined in the By-Laws of the Corporation) consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of directors of
the Corporation in the manner provided in the next preceding paragraph upon
receipt of an undertaking by or on behalf of the director, officer, member,
employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Corporation as
authorized in this Article XIII.
The indemnification provided by this Article XIII shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any statute, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer,member, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article XII
or of the General Corporation Law of the State of Delaware.
ARTICLE XIV
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution, or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders, of this Corporation, as
the case may be, to be summoned in such manner as said court directs. If a
majority in number representing three-fourths in value of the creditors or
class or creditors, and/or of the stockholders or class of stockholders, of
this Corporation, as the case may be, agrees to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding upon all the creditors or class of creditors, and/or
upon all the stockholders or class of stockholders, of this Corporation, as
the case may be, and also n this Corporation.
ARTICLE XV
RESERVATION OF RIGHTS TO AMEND CERTIFICATE
OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation in the manner
now or hereafter prescribed by law, and all the provisions of this Certificate
of Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders, directors and officers are subject to this
reserve power.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this certificate, hereby declaring and
certifying that the facts herein stated are true, and accordingly have
hereunto set my hand and seal this 13th day of April, 1968.
/s/ John W. Weiser (L.S.)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on the 15th day of April, 1968, personally came
before me GILBERT H. BLEICH, a Notary Public in and for the County and State
aforesaid, JOHN W. WEISER, being the party to the foregoing certificate of
incorporation, known to me personally to be such, and acknowledged the
certificate of incorporation to be his act and deed and that the facts therein
stated are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office
the day and year aforesaid.
/s/ Gilbert H. Bleich
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Recorded in the Recorder's Office at Wilmington, in INCORPORATION
Record N Vol. 94 Page 1 oxx, the
16th day of April A.D. 1968.
Witness my hand official seal.
/s/ Leo J. Dugan Jr.
Recorder
/s/ Louis Guberman
Chief Deputy
STATE OF DELAWARE
Office of
SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of Delaware, do
hereby certify that the attached is a true and correct copy of
Certificate of Agreement of Merger
filed in this office on February 28, 1974
/s/ Michael Harkins
Michael Harkins, Secretary of State
By /s/ C. Colman
Date: March 9, 1987
[CONFORMED COPY]
PLAN AND AGREEMENT OF MERGER
Dated as of December 5, 1973
By and Between
TEMPORARY CORPORATION
and
DEAN WITTER & CO. INCORPORATED
Joined in by
DEAN WITTER ORGANIZATION INC.
______________
CERTIFICATE OF INCORPORATION
of
DEAN WITTER & CO. INCORPORATED
(Appendix A)
APPENDIX A
CERTIFICATE OF INCORPORATION
of
DEAN WITTER & CO. INCORPORATED
______________
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER dated as of December 5, 1973 (the
"Agreement") by and between TEMPORARY CORPORATION, a Delaware corporation
("Temporary"), and DEAN WITTER & CO. INCORPORATED, a Delaware corporation
("DW"), (said corporations being hereinafter sometimes referred to jointly as
the "Constituent Corporations"), and joined in by DEAN WITTER ORGANIZATION
INC., a Delaware corporation ("Dean Witter"), as third party hereto.
WHEREAS the registered offices of Temporary, DW and Dean Witter are
located at No. 100 West 10th Street, City of Wilmington, County of New Castle,
State of Delaware, and the agent in charge of such offices and upon whom
process against such corporations may be served is The Corporation Trust
Company; and
WHEREAS the authorized capital stock of Temporary consists of 10,000
shares of Common Stock, par value $1.00 per share ("Temporary Common Stock"),
of which 10,000 shares of Common Stock, constituting all, the issued and
outstanding shares of capital stock of Temporary, will be on the Effective
Date (as defined in Section 3.2 hereof) owned by Dean Witter; and
WHEREAS the authorized capital stock of Dean Witter consists of 15,
500,000 shares, of which 15,000,000 shares are Common Stock, par value $1.00
per share ("Dean Witter Common Stock"), and 500,000 shares are Preferred
Stock, par value $1.00 per share ("Dean Witter Preferred Stock"); and
WHEREAS the authorized capital stock of DW consists of 15,300,000
shares, of which 15,000,000 shares are Common Stock, par value $1.00 per share
("DW Common Stock"), and 300,000 shares are Preferred Stock, par value $1.00
per share ("DW Preferred Stock"); and
WHEREAS the respective Boards of Directors of DW, Temporary and Den
Witter adopted resolutions approving this Agreement and have determined that
it is advisable and in the best interests of said corporations and the
stockholders of each thereof that Temporary be merged into DW under and
pursuant to the General Corporation Law of the State of Delaware; and
WHEREAS this Agreement provides that certain transactions shall be
effected between Dean Witter and DW following the merger of Temporary into DW
as contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and provisions herein contained, the Constituent Corporations
hereby agree in accordance with the General Corporation Law of the State of
Delaware that Temporary shall be, at the Effective Date of this Agreement,
merged into DW, one of the Constituent Corporations, which shall be the
surviving corporation (said corporation in its capacity as such surviving
corporation being hereinafter sometimes referred to as the "Surviving
Corporation"), and the Constituent Corporations and Dean Witter hereby agree
upon and prescribe the terms and conditions relating to said merger and the
transactions to be effected thereafter between Dean Witter and DW, and the
mode of carrying the same into effect, as follows:
I.
NAME OF SURVIVING CORPORATION; CERTIFICATE OF INCORPORATION;
BY-LAWS; DIRECTORS; OFFICERS; VACANCIES
1.1 Name of Surviving Corporation. The corporation which shall
survive the merger is Dean Witter & Co. Incorporated, a Delaware corporation
("DW").
1.2 Certificate of Incorporation. The Certificate of Incorporation
of DW is hereby amended, effective on the Effective Date of the merger, by
amending Articles IV and VII so that the Certificate of Incorporation as so
amended shall read as set forth in Appendix A hereto. On the Effective Date,
the Certificate of Incorporation of DW, as hereby amended, shall become and
shall thereafter continue to be the Certificate of Incorporation of the
Surviving Corporation until changed as provided by law.
1.3 Directors. The directors of DW in office on the Effective Date
shall be the directors of the Surviving Corporation until their successors are
elected in accordance with the By-Laws of the Surviving Corporation and shall
have duly qualified.
1.4 Officers. The officers of DW in office on the Effective Date
shall be the officers of the Surviving Corporation and, until their successors
are elected or appointed in accordance with the By-Laws of the Surviving
Corporation and shall have duly qualified, such officers shall hold the office
in the Surviving Corporation which they held before the merger in DW.
1.5 Vacancies. If, on the Effective Date, a vacancy shall exist in
the Board of Directors or in any of the offices of the Surviving Corporation
by reason of death or inability to act, or for any other reason, such vacancy
may be filled in the manner provided in the By-Laws of the Surviving
Corporation.
II.
CONVERSION AND STATUS OF SHARES
2.1 Conversion of Shares. The manner and basis of converting and
exchanging the shares of stock of each of the Constituent Corporations into or
for shares of stock of the Surviving Corporation and Dean Witter, as the case
may be, shall be as follows:
(a) DW Common Stock. On the Effective Date, each share of DW Common
Stock which shall be outstanding (including as outstanding, whether or not
certificates therefor have been issued or delivered, shares of Common Stock of
DW resulting from the conversion of Class B Preferred Stock and Common Stock
of Laird, Bissell & Meeds, Inc. ("LM") into Common Stock of DW pursuant to the
Agreement of Merger dated as of April 2, 1973 between DW and LBM filed in the
Office of the Secretary of State of the State of Delaware on April 2, 1973)
shall, by virtue of the merger and without any action on the part of the
holder thereof, be converted into and exchanged for one share of Dean Witter
Common Stock. No cash, securities or other property shall be paid, issued or
given in respect of shares of DW Common Stock owned on the Effective Date by
DW and he3ld as treasury stock, and on the Effective Date all said shares of
DW Common Stock owned by DW and the cetificates representing the same shall be
cancelled and retired and all rights in respect thereof shall cease to exist.
(b) Cancellation of DW Common Stock. On the Effective Date, all
shares of DW Common Stock shall be deemed to be retired and no longer
authorized, and the holders of outstanding certificates therefor shall have
only the rights set forth in Section 2.2 of this Agreement.
(c) Temporary Common Stock. On the Effective Date, each share of
Temporary Common Stock which shall be outstanding shall, on such date, by
virtue of the merger and without any action on the part of the holder thereof,
be converted into and exchanged for one share of DW Common Stock.
(d) DW Preferred Stock. No shares of DW Preferred Stock are issued
or outstanding and consequently no cash, securities or other property shall be
paid, issued or given in respect of DW Preferred Stock.
(e) Cancellation of Dean Witter Common Stock. On the Effective Date,
all shares of Dean Witter Common Stock outstanding immediately prior to the
Effective Date shall be surrendered and retired and the certificates
representing such shares shall be cancelled and all rights in respect thereof
shall cease to exist.
2.2 Status of Securities.
(a) Surrender and Exchange of Outstanding Certificates for DW Common
Stock. After the Effective Date, each holder of an outstanding certificate or
certificates theretofore representing shares of DW Common Stock may surrender
such certificate or certificates to such bank or banks or trust company or
trust companies as shall be designated by the Surviving Corporation, and shall
receive in exchange therefor a certificate or certificates representing the
number of shares of Dean Witter Common Stock into and for which the shares of
DW Common Stock theretofore represented by such surrendered certificate or
certificates shall have been converted and exchanged as herein provided.
(b) Status of Outstanding Certificates for DW Common Stock. Until
surrendered and exchanged, each outstanding certificate theretofore
representing shares of DW Common Stock shall be deemed for all purposes to
evidence ownership of and to represent the number of shares of Dean Witter
Common Stock into and for which the shares of DW Common Stock thertofore
represented thereby shall have been converted and exchanged as herein
provided. If any certificate representing Dean Witter Common Stock is to be
issued in a name other than that in which the certificate representing DW
Common Stock surrendered is registered, it shall be a condition of such
issuance that the certificate so surrendered shall be properly endorsed or
accompanied by a stock power and otherwise in proper form for transfer and
that the person requesting such issuance shall pay to Dean Witter or its
transfer agent any transfer or other taxes required by reason of the issuance
of certificates representing Dean Witter Common Stock in a name other than
that of the registered holder of the certificate surrendered, or establish to
the satisfaction of Dean Witter or its transfer or co-transfer agent that such
tax has been paid or it not applicable.
III.
STOCKHOLDER APPROVAL AND ADOPTION; EFFECTIVE DATE
3.1 Stockholder Approval and Adoption. (a) Meetings of the
stockholders of Temporary, DW and Dean Witter shall be called to be held in
accordance with the General Corporation law of the State of Delaware on or
before February 28, 1974 (or such later date as may be approved by the
respective Boards of Directors of Temporary, DW and Dean Witter) after at
least 20 days' prior written notice thereof to each stockholder, whether
voting or nonvoting, of the respective corporations, in each case to consider
and vote upon, among other things, the approval and adoption of this Agreement,
provided, however, that no such meeting shall be required in the case of
Temporary or Dean Witter in the event that on or before the date to be set as
provided in this Section 3.1(a) the sole stockholder of Temporary and sole
stockholder of Dean Witter shall have consented in writing to the approval and
adoption of this Agreement.
(b) If this Agreement is approved and adopted as provided in Section
3.1(a) of this Agreement in accordance with the General Corporation Law of the
State of Delaware by stockholders of Temporary (or, in lieu thereof, by written
consent of the sole stockholder of Temporary), by the stockholders of DW and
by the stockholders of Dean Witter (or, in lieu thereof, by written consent of
the sole stockholder of Dean Witter), the fact of such approval and adoption
shall be certified on this Agreement by the Secretary or Assistant Secretary
of Temporary, by the Secretary or Assistant Secretary of DW and by the
Secretary or Assistant Secretary of Dean Witter, each such certification to be
under their respective corporate seals; this Agreement so approved, adopted
and certified shall be signed, sealed and acknowledged by and on behalf of
Temporary, DW and Dean Witter; and if the merger is not thereafter abandoned
as permitted by the provisions of this Agreement, this Agreement so approved,
adopted, certified, signed, sealed and acknowledged shall be submitted for
filing and recording in accordance with the General Corporation Law of the
State of Delaware.
3.2 Effective Date. This Agreement shall become effective on the
date and at the time when this Agreement duly approved, adopted, certified,
signed, sealed and acknowledged has been filed in the office of the Secretary
of State of the State of Delaware. The date and time of such effectiveness is
referred to herein as the "Effective Date." After such filing, this Agreement
shall be promptly recorded in the office of the Recorder of Deeds, County of
New Castle, State of Delaware.
IV.
CERTAIN AGREEMENTS BY DEAN WITTER AND DW
4.1 Agreements of Dean Witter; Issue and Delivery of Shares. Dean
Witter agrees to issue and cause to be delivered pursuant to this Agreement
such number of shares of Dean Witter Common Stock as shall be required to
consummate the transactions contemplated by this Agreement.
4.2 Registration of Exchanged Shares. Dean Witter agrees that it
will, on or prior to the Effective Date, register under the Securities Act of
1933 the number of shares of the Dean Witter Common Stock required to be
exchanged for the DW Common Stock.
4.3 Stock Option Plans. Dean Witter agrees on the Effective Date to
assume all valid and outstanding options (in accordance with their terms)
under the DW Stock Option Plans, which options shall thereupon be valid and
enforceable options to purchase the same number of shares of Dean Witter
Common Stock at the same purchase price per share.
On the Effective Date, the DW Stock Option Plans shall be continued
as the plans of Dean Witter, under which options may be granted to purchase
shares of Dean Witter Common Stock on the same basic terms and conditions
contained in the plans of DW. The total number of shares of Dean Witter which
may be issued and sold under the continued plans shall be the same as the
total number of shares authorized under the plans of DW as of the Effective
Date.
4.4 Stock Accumulation Plan. DW agrees on the Effective Date to
continue the DW Stock Accumulation Plan except that Dean Witter shares will be
substituted for shares of DW.
4.5 Registration of Stock Option and Stock Accumulation Plan Shares.
Dean Witter agrees that it will, promptly after the execution of this
Agreement, prepare and file with the Securities and Exchange Commission a
registration statement or an amendment to DW's registration statement, if
required, for registration under the Securities Act of 1933 of the shares of
Dean Witter Common Stock to be issued in connection with the Stock Option
Plans and the Stock Accumulation Plan.
4.6 Registration Under the Securities Exchange Act of 1934. Dean
Witter agrees that it will, on or prior to the Effective Date, register Dean
Witter Common Stock under the Securities Exchange Act of 1934.
V.
CERTAIN EFFECTS OF MERGER
5.1 Rights of Surviving Corporation. When the merger becomes
effective under the General Corporation Law of the State of Delaware, the
separate existence of Temporary shall cease, shall be merged into DW, and the
Surviving Corporation, without further action, shall succeed to and shall
possess and enjoy all the rights, privileges, powers and franchises of a
public as wel as of a private nature, and be subject to all the restrictions,
disabilities and duties of the Constituent Corporations and all and singular,
the rights, privileges, powers and franchises of the Constituent Corporations
and all property, real, personal and mixed, and all debts due to each
Constituent Corporation on whatever account, for stock subscriptions as well
as all other things in action or belonging to each Constituent Corporation,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest, shall be
thereafter as effectually the property of the Surviving Corporation as they
were of the Constituent Corporations; and the title to any real estate or any
interest therein and to any other property, whether vested by deed or
otherwise, under the laws of the State of Delaware or of any other
jurisdiction, in each Constituent Corporation shall not revert or be in any
way impaired by reason of the merger; provided, however, that all rights of
creditors and all liens upon the property of the Constituent Corporations
shall be preserved unimpaired, and all debts, liabilities, and duties of the
Constituent Corporations shall thenceforth attach to the Surviving
Corporation, and may be enforced against it to the same extent as if said
debts, liabilities and duties had been incurred or contracted by it. Any
action or proceeding, whether civil, criminal or administrative, pending by or
against either Constituent Corporation, may be prosecuted as if the merger had
not taken place, or the Surviving Corporation may be substituted for either
Constituent Corporation in such action or proceeding; and any judgment
rendered against either Constituent Corporation may be enforced against the
Surviving Corporation. At any time, or from time to time, after the Effective
Date, the last acting officers of the Constituent Corporations or the
corresponding officers of the Surviving Corporation may, in the name of either
or both of the Constituent Corporations, execute and deliver all such proper
deeds, assignments and other instruments and take or cause to be taken all such
further or other action as the Surviving Corporation may deem necessary or
desirable in order to vest, perfect or confirm in the Surviving Corporation
title to and possession of all of the property, rights, privileges, immunities,
powers and franchises of the Constituent Corporations, and otherwise to carry
out the purposes of this Agreement.
5.2 Corporate Acts Binding on Surviving Corporation. On the
Effective Date, all corporate acts, plans, policies, approvals and
authorizations of DW, its stockholders, Board of Directors, committees elected
or appointed by the Board of Directors, officers and agents, which were valid
and effective immediately before the Effective Date shall be taken for all
purposes as the acts, plans, policies, approvals and authorizations of the
Surviving Corporation and shall be effective and binding on the Surviving
Corporation as the same were with respect to DW. The employees and agents of
DW shall become the employees and agents of the Surviving Corporation and
continue to be entitled to the same rights and benefits which they enjoyed as
employees and agents of DW.
5.3 Assets and Liabilities of Surviving Corporation. On the
Effective Date, the assets, liabilities, reserves and accounts of each of the
Constituent Corporations shall be taken up on the books of the Surviving
Corporation at the amounts at which they, respectively, shall then be carried
on the books of said corporations, subject to such adjustments, or
eliminations of intercompany items, as may be applicable in giving effect to
the merger.
VI.
ABANDONMENT AND TERMINATION
6.1 Right of DW Not to Proceed. DW shall have the right to abandon
the merger in the event that any of the following shall not have occurred as
of the dates which are specified in each of Section 3.1(a) and 6.1(a) through
6.1(e) hereafter.
(a) Performance of Agreements. On or before the Effective Date,
Temporary and Dean Witter shall have performed all their respective
obligations and agreements required by this Agreement to be performed on or
before such date, and in rendering such performance Temporary and Dean Witter
shall have complied with this Agreement.
(b) Tax Matters. On or before the Effective Date, DW shall have
received a ruling from the Internal Revenue Service, or an opinion from its
counsel, to the effect that:
(1) No gain or loss will be recognized by the holders of the DW
Common Stock upon the exchange and conversion of their shares into Dean Witter
Common Stock.
(2) The basis of the shares of Dean Witter Common Stock for which and
into which the shares of Common Stock of DW are exchanged and converted will
be the same as the basis of such shares of Common Stock of DW.
(3) The holding periods of the shares of Dean Witter Common Stock for
which and into which the shares of Common Stock of DW are exchanged and
converted will include the holding periods for which such shares of Common
Stock of DW were held.
(c) Opinion of Counsel. On or before the Effective Date, DW and Dean
Witter shall have received an opinion of Messrs. Pillsbury, Madison & Sutro,
dated the Effective Date, satisfactory in form and in substance to DW and Dean
Witter to the effect that:
(1) Temporary and Dean Witter are duly oganized, validly existing and
in good standing under the laws of the State of Delaware, and each has all
requisite corporate power to conduct such business as is authorized by its
respective Certificate of Incorporation.
(2) The execution, delivery and performance by DW, Temporary and Dean
Witter of this Agreement, and the consummation of all transactions
contemplated hereby, have been duly authorized on behalf of DW, Temporary and
Dean Witter by all necessary corporate action; and this Agreement constitutes
the legal, valid and binding obligation of DW, Temporary and Dean Witter,
enforceable in accordance with its terms and conditions.
(3) The shares of Dean Witter Common Stock issued by Dean Witter to
the stockholders of DW have been duly authorized, and have been validly issued
and are fully paid and non-assessable shares of such stock of Dean Witter, with
no personal liability attaching to the ownership thereof.
Insofar as such opinion involves matters of the law of any
jurisdiction other than the State of California, such opinion may be given in
reliance upon an opinion or opinions of local counsel satisfactory to DW and
Dean Witter. Copies of any such opinion or opinions of local counsel shall be
delivered to Dean Witter.
(d) Approval by New York Stock Exchange, Inc. On or before the
Effective Date, the New York Stock Exchange, Inc. shall have (i) advised DW
that DW's membership on that Exchange will not be suspended or terminated as a
result of the merger, (ii) approved all shares of Dean Witter Common Stock to
be issued or reserved for issuance pursuant to the merger for listing, upon
official notice of issuance, and (iii) approved Dean Witter as an "approved
person" of the Surviving Corporation.
(e) Miscellaneous Approvals. On or before the Effective Date, DW
shall have received all orders, consents or approvals, governmental or
otherwise, which, in the opinion of DW, are required by law or advisable to
permit or enable the Surviving Corporation to succeed, on the Effective Date,
to all or any part of the rights, privileges, assets, liabilities and
obligations of DW, or to conduct, on and after the Effective Date, all or any
part of the business or activitie theretofore conducted by DW.
6.2 Mandatory Abandonment. The merger shall be abandoned or
terminated if the holders of a majority of the shares of DW Common Stock
outstanding and entitled to vote at the meeting of the stockholders of DW
referred to in Section 3.1(a) of this Agreement shall not have voted in favor
of the adoption and approval of this Agreement and the merger contemplated
hereby.
6.3 Optional Abandonment. In addition to the terms and conditions of
abandonments elsewhere set out in this Article VI, the merger may be abandoned
or terminated on or before the Effective Date, notwithstanding approval of this
Agreement by the stockholders of the parties hereto, by mutual agreement of
the Boards of Directors of the Constituent Corporations.
6.4 Effect of Abandonment. In the event the merger is abandoned or
terminated as in this Article VI provided, this Agreement shall forthwith
become wholly void and of no effect and there shall be no liability on the
part of the Constituent Corporations or any of their respective directors,
officers or stockholders.
VII.
GENERAL
7.1 Execution in Counterparts. For the convenience of the parties
and to facilitate filing, this Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
7.2 Waivers, Amendments and Modifications. Any term or condition of
this Agreement may be waived at any time by a Constituent Corporation or Dean
Witter which is, or the stockholders of which are, entitled to the benefit
thereof, by action taken by the Board of Directors of such Constituent
Corporation or Dean Witter, or may be amended or modified in whole or in part
at any time before the adoption of this Agreement by stockholders of the
Constituent Corporations and Dean Witter by an agreement in writing executed
in the same manner as this Agreement after authorization thereof by the Boards
of Directors of the Constituent Corporations and Dean Witter, provided,
however, that such action shall be taken only if, in the judgment of the Board
of Directors taking the action, such wiaver or amendment or modification will
not have a materially adverse effect on the benefits intended under this
Agreement for the stockholders of its corporation.
7.3 Applicable Law. This Agreement and the legal relations between
the parties therto shall be governed by and construed in accordance with the
laws of the State of Delaware.
7.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, oral and written, between the parties thereto with respect to
the subject matter hereof.
7.5 Binding Effect, Benefits. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, provided, however, that nothing in this Agreement
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been approved by resolution
duly adopted by the Board of Directors of each of the Constituent Corporations
and of Dean Witter and has been signed by duly authorized officers of each of
the Constituent Corporations and of Dean Witter and each of the Constituent
Corporations and Dean Witter has caused its corporate seal to be hereunto
affixed and attested by the signature of its Secretary or an Assistant
Secretary, all as of the date first above written.
ATTEST: TEMPORARY CORPORATION
/s/ Roger Anawalt By /s/ H G Hawkins, Jr.
Secretary President
[corporate seal]
attest: DEAN WITTER & CO. INCORPORATED
/s/ H G Hawkins, Jr. By /s/ William M. Witter
Secretary Chairman of the Board
and Chief Executive Officer
[corporate seal]
attest: DEAN WITTER ORGANIZATION INC.
/s/ H G Hawkins, Jr. By /s/ William M. Witter
Secretary President
[corporate seal]
STATE OF CALIFORNIA )
) ss.:
CITY AND COUNTY OF SAN FRANCISCO )
BE IT REMEMBERED that on this 7th day of December, 1973, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, HOWARD G. HAWKINS, JR., President of Temporary Corporation, party
to the foregoing Plan and Agreement of Merger, known to me personally to be
such, and duly acknowledged the said Plan and Agreement of Merger to be the
act and deed of Temporary Corporation, and that the facts therein stated are
true.
Given under my hand and seal of office the day and year aforesaid.
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRES MAY 16, 1976
NOTARIAL SEAL
State of California )
) ss.:
City and County of San Francisco )
BE IT REMEMBERED that on this 7th day of December, 1973, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, WILLIAM M. WITTER, Chairman of the Board and Chief Executive
Officer of Dean Witter & Co. Incorporated, party to the foregoing Plan and
Agreement of Merger, known to me personally to be such, and duly acknowledged
the said Plan and Agreement of Merger to be the act and deed of Dean Witter &
Co. Incorporated, and that the facts therein stated are true.
Given under my hand and seal of office the day and year aforesaid.
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRES MAY 16, 1976
NOTARIAL SEAL
State of California )
) ss.:
City and County of San Francisco )
BE IT REMEMBERED that on this 7th day of December, 1973, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, WILLIAM M. WITTER, President of Dean Organization Inc., party to
the foregoing Plan and Agreement of Merger, known to me personally to be such,
and duly acknowledged the said Plan and Agreement of Merger to be the act and
deed of Dean Witter Organization Inc., and that the facts therin stated are
true.
Given under my hand and seal of office the day and year aforesaid.
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRES MAY 16, 1976
SECRETARY'S CERTIFICATE
The undersigned, ROGER ANAWALT, Secretary of Temporary Corporation,
one of the merging corporations mentioned in the within Plan and Agreement of
Merger, on behalf of said corporation certifies as follows:
The within Plan and Agreement of Merger has been consented to in
writing by all of the stockholders of the corporation entitled to vote on the
merger.
Dated February 19, 1974.
TEMPORARY CORPORATION
[Corporate Seal]
/s/ Roger Anawalt
Roger Anawalt, Secretary
SECRETARY'S CERTIFICATE
The undersigned, HOWARD G. HAWKINS, JR., Secretary of Dean Witter &
Co. Incorporated, one of the merging corporations mentioned in the within Plan
and Agreement of Merger, on behalf of said corporation certifies as follows:
The within Plan and Agreement of Merger has been submitted to the
stockholders of the corporation at a meeting thereof duly called and held, in
accordance with the provisions of Section 251 of the General Corporation Law of
the State of Delaware, on the 18th day of January, 1974 and at said meeting
said Agreement was considered and a vote, in person or by proxy, was taken for
the adoption or rejection of said Agreement, and the votes of the stockholders
of said corporation representing 3,359,296 shares of its Common Stock, being
at least a majority of the shares of capital stock of said corporation issued
and outstanding and entitled to vote thereon, were for the adoption of said
Agreement and voted therefor.
Dated February 19, 1974.
DEAN WITTER & CO. INCORPORATED
[Corporate Seal]
/s/ H G Hawkins, Jr.,
Howard G. Hawkins, Jr.,
Secretary
SECRETARY'S CERTIFICATE
The undersigned, HOWARD G. HAWKINS, JR., Secretary of Dean Witter
Organization Inc., one of the corporations mentioned in the within Plan and
Agreement of Merger, on behalf of said corporation certifies as follows:
The within Plan and Agreement of Merger has been consented to in
writing by all of the stockholders of the corporation entitled to vote on the
merger.
Dated February 19, 1974.
DEAN WITTER ORGANIZATION INC.
[Corporate Seal]
/s/ H G Hawkins, Jr.
Howard G. Hawkins, Jr.,
Secretary
The foregoing Plan and Agreement of Merger, having been duly enterred
into and signed by each corporate party thereto, and having been duly adopted
by the stockholders of each of such corporations, all in accordance with the
provisions of the General Corporation Law of the State of Delaware, the
Chairman of the Board and Chief Executive Officer of Dean Witter & Co.
Incorporated and the President of Temporary Corporation, do now hereby execute
said Plan and Agreement of Merger under the corporate seals of their
respective corporations by authority of the directors and stockholders of
each, as the respective act, deed and agreement of each of said corporations,
on this 19th day of February, 1974.
DEAN WITTER & CO. INCORPORATED
By /s/ William M. Witter
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ H G Hawkins, Jr.
Howard G. Hawkins, Jr.,
Secretary
[Corporate Seal]
TEMPORARY CORPORATION
By /s/ H G Hawkins, Jr.
President
ATTEST:
/s/ Roger Anawalt
Roger Anawalt, Secretary
[Corporate Seal]
State of California )
) ss.:
City and County of San Francisco)
BE IT REMEMBERED that on this 19th day of February, 1974, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, WILLIAM M. WITTER, Chairman of the Board and Chief Executive
Officer of Dean Witter & Co. Incorporated, party to the foregoing Plan and
Agreement of Merger, known to me personaly to be such, and duly acknowledged
the said Plan and Agreement of Merger to be the act and deed of Dean Witter &
Co. Incorporated, and that the facts therein stated are true.
Given under my hand and seal of office the day and year aforesaid.
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRE MAY 16, 1976
NOTARIAL SEAL
State of California )
) ss.:
City and County of San Francisco )
BE IT REMEMBERED that on this 19th day of February, 1974, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, HOWARD G. HAWKINS, Jr., President of Temporary Corporation, party
to the foregoing Plan and Agreement of Meger, known to me personally to be
such, and duly acknowledged the said Plan and Agreement of Merger to be the
act and deed of Temporary Corporation, and that the facts therein stated are
true.
Given under my hand and seal of office the day and year aforesaid.
NOTARIAL SEAL
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRE MAY 16, 1976
Dean Witter Organization Inc. hereby joins in the foregoing Plan and
Agreement of Merger, undertakes that it will be bound thereby and that it will
do and perform all the acts and things therein provided to be done by it and
cooperate in carrying out the transactions therein contemplated.
DEAN WITTER ORGANIZATION INC.
By /s/ William M. Witter
President
Attest:
/s/ H G Hawkins, Jr.
Howard G. Hawkins, Jr.,
Secretary
NOTARIAL SEAL
State of California )
) ss.:
City and County of San Francisco )
BE IT REMEMBERED that on this 19th day of February, 1974, personally
came before me, Barbara B. Kiley, a Notary Public in and for the State of
California, WILLIAM M. WITTER, President of Dean Witter Organization, Inc.,
party to the foregoing Plan and Agreement of Merger, known to me personaly to
be such, and duly acknowledged the said Plan and Agreement of Merger to be the
act and deed of Dean Witter Organization Inc., and that the facts therein
stated are true.
Given under my hand and seal of office the day and year aforesaid.
NOTARIAL SEAL
BARBARA B. KILEY /s/ Barbara B. Kiley
Notary Public
Notary Public-California
City and County of
San Francisco
MY COMMISSION EXPIRE MAY 16, 1976
State
of
DELAWARE
Office of SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of Delaware, do
hereby certify that the attached is a true and correct copy of
Certificate of Amendment filed in this office on April 8, 1974
/s/ Michael Harkins, Secretary of State
[Seal] By: /s/ C. Coleman
DATE: March 9, 1987
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER & CO. INCORPORATED
Adopted in accordance with the provisions of
Sections 228 and 242 of the General Corporation Law
of the State of Delaware
I, HOWARD G. HAWKINS, JR., a Vice
President of DEAN WITTER & CO. INCORPORATED, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), do
hereby certify under the seal of the Corporation as follows:
FIRST: That the amendments to the
Certificate of Incorporation of the Corporation are as follows:
Clause (t) of Article III of the
Certificate of Incorporation of Dean
Witter & Co. Incorporated be renumbered as
clause (u) of Article III and a new clause
(t) of Article III be added to read in its
entirety as follows:
"(t) To conduct a general insurance
agency and brokerage business, acting in its own name as agent or
broker or through employees or others as agents or sub-agents or
brokers, including without limitation life, annuity, accident and
health, disability, casualty and liability insurance."
SECOND: That such amendments were
proposed and declared advisable by the Board of Directors of the
Corporation at a meeting of said Board duly held on March 29, 1974;
that such amendments have been consented to in writing by the holders
of a majority of the outstanding shares of stock of the Corporation;
and that prompt notice of the taking of the above corporate action
without a meeting by less than unanimous written consent of the
holders of the outstanding shares of stock of the Corporation has been
given to those stockholders who have not so consented in writing, all
in accordance with the provisions of Sections 228 and 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I have signed this
Certificate and caused the corporate seal of the Corporation to be hereunto
affixed this 3rd day of April, 1974.
/s/ H. G. Hawkins Jr.
Vice President
Dean Witter & Co. Incorporated
Attest:
/s/ (Illegible)
Assistant Secretary
Dean Witter & Co. Incorporated
[Corporate Seal]
STATE OF CALIFORNIA )
) SS.
City and County of San Francisco)
HOWARD G. HAWKINS, JR., being duly sworn,
deposes and says that he is a Vice President of DEAN WITTER & CO.
INCORPORATED, the corporation mentioned and described in the foregoing
instrument; that he has read and signed the same and that the statements
contained therein are true.
/s/ H. G. Hawkins, Jr.
Sworn to before me this 3rd
day of April, 1974
/s/ Barbara B. Kiley
Notary Public
NOTARIAL SEAL
STATE OF CALIFORNIA )
) SS.
City and County of San Francisco)
BE IT REMEMBERED that on this 3rd day of
April, 1974 before me, a Notary Public in and for the County and State
aforesaid, personally came HOWARD G. HAWKINS, JR., a Vice President of DEAN
WITTER & CO. INCORPORATED known to me personally to be such, and he duly
acknowledged the said certificate to be his act and deed, and that the facts
therein stated are true.
GIVEN under my hand and seal of office the
day and year aforesaid.
/s/ Barbara B. Kiley
Notary Public
NOTARIAL SEAL
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of Delaware, do
hereby certify that the attached is a true and correct copy of
Certificate of AGREEMENT OF MERGER filed in this office on January 3,
1978.
/s/ Michael Hawkins
Michael Harkins
Secretary of State
By:/s/ C. Coleman
DATE: March 9, 1987
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER, dated as of
December 27, 1977 ("Agreement"), by and between DEAN WITTER & CO.
INCORPORATED, a Delaware corporation ("DW"), and REYNOLDS SECURITIES INC., a
Delaware corporation ("RSI"), each such corporation being sometimes referred to
as a "Constituent Corporation", and the corporation surviving the merger
hereinafter provided for being sometimes referred to as the "Surviving
Corporation".
I.
MERGER OF CONSTITUENT CORPORATIONS
1.1. Merger; Surviving Corporation; Name.
Subject to the provisions hereof and to the requirements of law, RSI shall be
merged into DW pursuant to the General Corporation Law of the State of
Delaware ("DGCL"), with the effect stated in Section 259 thereof. The merger
shall become effective on the date this Agreement or an appropriate
Certificate of Merger is filed in the Office of the Secretary of State of the
State of Delaware in accordance with the DGCL, and such date is hereinafter
referred to as the "Effective Date". DW shall be the Surviving Corporation
and on the Effective Date its name shall be changed to Dean Witter Reynolds
Inc. ("DWR").
1.2. Certificate of Incorporation and
By-Laws. On the Effective Date the Certificate of Incorporation of the
Surviving Corporation shall be amended as follows:
A.Article I of the Certificate of
Incorporation of the Surviving Corporation shall be amended in its entirety to
read as follows:
"Article I
Name
The name of the Corporation is:
DEAN WITTER REYNOLDS INC."
B. Section 1 of Article IV of the
Certificate of Incorporation of the Surviving Corporation shall be amended in
its entirety to read as follows:
"SECTION 1. Shares, Classes and Series
Authorized. The total number of shares of capital stock which the
corporation shall have authority to issue is twelve thousand (12,000)
shares, of which eleven thousand (11,000) shares shall be Common
Stock of the par value of one hundred dollars ($100) each
(hereinafter called "Common Stock") and one thousand (1,000) shares
shall be Series Preferred Stock of the par value of one dollar
($1.00) each. Such Series Preferred Stock and Common Stock are
sometimes hereinafter collectively called 'capital stock'."
Such amended Certificate of Incorporation shall be the Certificate of
Incorporation of the Surviving Corporation until further amended in accordance
with law. The By-Laws of DW as in effect on the date hereof, except as amended
prior to the Effective Date with the consent of RSI, shall be the By-Laws of
the Surviving Corporation until further amended as provided therein and in
accordance with law.
1.3. Directors. From the Effective Date
until their successors are elected pursuant to law and the By-Laws of the
Surviving Corporation, the initial members of the Board of Directors of the
Surviving Corporation shall be the persons named as such in Annex 1 hereto.
In the event of the unavailability of any such person to serve as a director,
the Board of Directors of the Surviving Corporation may elect a replacement
for such person, in accordance with the provisions of the By-Laws of the
Surviving Corporation governing the filling of vacancies.
II.
CONVERSION OF SECURITIES
2.1. Conversion of Securities. The
manner and basis of converting and exchanging the shares of stock of each
Constituent Corporation into or for shares of stock of the Surviving
Corporation shall be as follows:
(A)RSI Common Stock. On the Effective
Date, each share of RSI Common Stock which shall be outstanding
shall, pursuant to the merger and without any action by the holder
thereof, be converted into and exchanged for one share of Common
Stock of the Surviving Corporation, and each certificate of RSI
evidencing ownership of any such shares shall continue to evidence
ownership of the same number of shares of the Surviving Corporation.
(B)DW Common Stock. On the Effective
Date, the shares of DW issued and outstanding shall remain unchanged,
and each certificate of DW evidencing ownership of any such shares
shall continue to evidence ownership of the same number of shares of
the Surviving Corporation.
III.
RIGHT TO ABANDON
3.1. Rights of Parties to Abandon Merger.
The merger may be abandoned for any reason by mutual agreement of the
Constituent Corporations pursuant to action by their Boards of Directors, at
any time prior to the Effective Date, notwithstanding any approval by the
stockholders.
IV.
GENERAL
4.1. Execution in Counterparts. For the
convenience of the undersigned and to facilitate filing with appropriate
authorities, this Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same document.
4.2. Notices. All notices which are
required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be sufficient in all regards if given in writing and
delivered or mailed by first class mail postage prepaid, as follows:
If to DW, to:
Howard G. Hawkins, Jr.
Vice President and Secretary
Dean Witter & Co. Incorporated
45 Montgomery Street
San Francisco, CA 94106
Copy to:
William J. Ivey
Sullivan & Cromwell
125 Broad Street
New York, N.Y. 10004
If to RSI, to:
Robert M. Gardiner, Chairman
Reynolds Securities Inc.
120 Broadway
New York, N.Y. 10005
Copy to:
Arne Hovdesven
Shearman & Sterling
53 Wall Street
New York, N.Y. 10005
4.3. Applicable Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware.
4.4. Entire Agreement. This Agreement
constitutes the entire agreement among the undersigned and supersedes all
prior agreements and understandings, oral and written, among the undersigned
with respect to the subject matter hereof.
4.5. Binding Effect, Benefits. This
Agreement shall inure to the benefit of and be binding upon RSI and DW and
their respective successors and assigns; provided, however, that nothing in
this Agreement, express or implied, is intended to confer on any person other
than RSI and DW or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has
been approved by resolutions duly adopted by the Board of Directors of DW and
RSI and has been executed by duly authorized officers of each corporation, and
each corporation has caused its corporate seal to be hereunto affixed and
attested by the signature of its Secretary or an Assistant Secretary, all as
of the date first above written.
[SEAL] DEAN WITTER & CO. INCORPORATED
Attest:
By /s/ Robert W. Swinarton
By /s/ (Illegible)
[SEAL] REYNOLDS SECURITIES INC.
Attest:
By /s/ R. M. Gardiner
By /s/ (Illegible)
SECRETARY'S CERTIFICATE
The undersigned, Howard G. Hawkins, Jr.,
Secretary of Dean Witter & Co. Incorporated, one of the merging Corporations
mentioned within the Plan and Agreement of Merger, on behalf of said
Corporation certifies as follows:
The within Plan and Agreement of Merger
has been submitted to the stockholders of the Corporation and
unanimous written consent to the adoption of said Plan and Agreement
of Merger has been given in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware by
stockholders of said Corporation representing 10,000 shares of its
capital stock, being all of said capital stock issued and outstanding
and entitled to vote thereon.
IN WITNESS WHEREOF, I have signed this
Certificate this 28th day of December, 1977.
/s/ H. G. Hawkins Jr.
Secretary
SECRETARY'S CERTIFICATE
The undersigned, Robert G. Howard,
Secretary of Reynolds Securities Inc., one of the merging Corporations
mentioned within the Plan and Agreement of Merger, on behalf of said
Corporation certifies as follows:
The within Plan and Agreement of Merger
has been submitted to the stockholders of the Corporation and
unanimous written consent to the adoption of said Plan and Agreement
of Merger has been given in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware by
stockholders of said Corporation representing 1,000 shares of its
capital stock, being all of said capital stock issued and outstanding
and entitled to vote thereon.
IN WITNESS WHEREOF, I have signed this
Certificate this 28th day of December, 1977.
/s/ Robert G. Howard
Secretary
The foregoing Plan and Agreement of
Merger, having been duly entered into and signed by Dean Witter & Co.
Incorporated and Reynolds Securities Inc., Delaware corporations, and having
been duly adopted by the stockholders of each of such Corporations, all in
accordance with the provisions of the General Corporation Law of the State of
Delaware, the Chairman or Vice Chairman of the Board of Directors of Dean
Witter & Co. Incorporated and the Chairman of the Board of Directors of
Reynolds Securities Inc., do now hereby execute the said Plan and Agreement of
Merger and the Secretary or Assistant Secretary of each of such Corporations
now does hereby attest the said Plan and Agreement of Merger, as the act,
deed, plan and agreement of said Corporations, on this 28th day of December,
1977.
DEAN WITTER & CO. INCORPORATED
[SEAL]
By /s/ Robert W. Swinarton
ATTEST: /s/ (Illegible)
REYNOLDS SECURITIES INC.
[SEAL]
By /s/ R. M. Gardiner
ATTEST: /s/ (Illegible)
(Seal of the State of Delaware is printed here.)
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, Michael Harkins, Secretary of State of
the State of Delaware, do hereby certify that the above and foregoing is a
true and correct copy of Certificate of Change of Location of Registered
Office of the companies represented by "The Corporation Trust Company", as it
applies to "DEAN WITTER REYNOLDS INC.", as received and filed in this office
the twenty-seventh day of July, A.D. 1984, at 4:30 o'clock P.M.
IN TESTIMONY WHEREOF, I have hereunto set
my hand and official seal at Dover this ninth day of March in the
year of our Lord one thousand nine hundred and eighty-seven.
/s/ Michael Harkins
Michael Harkins
Secretary of State
(Seal)
Page 193
STATE OF DELAWARE - DIVISION OF CORPORATIONS
CHANGE OF ADDRESS FILING FOR
CORPORATION TRUST AS OF JULY 27, 1984
DOMESTIC
0676221 DEAN WITTER REYNOLDS INC. 04/15/1968 D DE
CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
To: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134
of Title 8 of the Delaware Code, the undersigned Agent for service of process,
in order to change the address of the registered office of the corporations
for which it is registered agent, hereby certifies that:
1.
The name of the agent is: The Corporation Trust Company
2.
The address of the old registered office was:
100 West Tenth Street
Wilmington, Delaware 19801
3.
The address to which the registered office is to be changed is:
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
The new address will be effective on July 30, 1984.
4.
The names of the corporations represented by said agent are set forth
on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused
this certificate to be signed on its
behalf by its Vice-President and Assistant
Secretary this 25th day of July, 1984.
THE CORPORATION TRUST COMPANY
(Name of Registered Agent)
By /s/ Virginia Colnell
(Vice-President)
Annex 1
DWR Board of Directors
Lincoln Ames Andrew J. Melton, Jr.
Henry Arbeeny Irwin H. Menchel
Letitia Baldridge G. Willard Miller, Jr.
Alfred J. Bianchetti Charles H. Mott
William P. Bradford Kenneth F. Mountcastle, Jr.
Donald J. Bruckmann Thomas J. Murtagh
Gerald F. Brush H. McKee Nunnally
Howard B. Dean Edmund C. Puckhaber
Ben H. Eaton Thomas C. Schneider
G. Leslie Fabian Robert E. Sinton
James A. Felchlin William T. Smales, Jr.
Robert M. Flanagan J. E. Wallace Sterling
Robert M. Gardiner Robert W. Swinarton
Harold E. Guenther Robert F. Tighe
Roger A. Hansen Yves P. Truffert
Richard R. Hayes Keith S. Wellin
Robert G. Howard Thomas W. Witter
Hugh Knowlton, Jr. William M. Witter
Arthur R. Marcus Samuel H. Wolcott III
Joseph H. McConnell Robert L. Woodberry
F. Gerard McGrath Melvin O. Wright
EXHIBIT 1.12
Amended in entirety: 12/16/86
Revised: 4/25/89
______________________________________
BY-LAWS
OF
DEAN WITTER REYNOLDS INC.
______________________________________
ARTICLE I: OFFICES
1.1 Registered Office
The registered office of DEAN WITTER REYNOLDS INC. (the
"Corporation"), shall be in the City of Wilmington, County of New Castle,
State of Delaware.
1.2 Principal Place of Business
The Corporation's principal place of business shall be in the City of
New York, County of New York, State of New York.
1.3 Other Offices
The Corporation may have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
2.1 Meetings of Stockholders
Meetings of stockholders of the Corporation shall be held on such
date, at such time, and at such place, either within or without the State of
Delaware, as shall be designated by the Board of Directors.
ARTICLE III: DIRECTORS
3.1 Election and Term
Except as otherwise provided by law or this Article III, directors
shall be elected at an annual meeting of stockholders and shall hold office
until their successors shall have been elected, or until their earlier death,
resignation or removal. Acceptance of the office of director may be expressed
orally or in writing, and attendance at the organization meeting or any other
meeting of the directors shall constitute such acceptance. Directors need not
be stockholders of the Corporation.
3.2 Number
The number of directors which shall constitute the whole Board of
Directors may be fixed from time to time by resolution of the Board of
Directors but shall not be less than three (3).
3.3 General Powers
The property and business of the Corporation shall be managed by or
under the direction of its Board of Directors. In addition to the powers and
authorities by these By-Laws expressly conferred upon them, the Board of
Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders.
3.4 Place of Meetings
Meetings of the Board of Directors may be held at the principal place
of business of the Corporation in New York or at any other place, within or
without the State of Delaware, from time to time, designated by the Board of
Directors.
3.5 Organization Meeting
A newly elected Board of Directors shall meet and organize as soon as
practicable after each annual meeting of stockholders, at the place at which
such meeting of stockholders took place, without notice of such meeting. If
a quorum is not present, such organizational meeting may be held at any other
time or place which may be specified in a notice given in the manner provided
in Section 3.7 of this Article III for special meetings of the Board of
Directors or in a waiver of notice thereof.
3.6 Regular Meetings
Regular meetings of the Board of Directors shall be held at such
times as may be determined by resolution of the Board of Directors and no
notice shall be required for any regular meeting. Except as otherwise
provided by law, any business may be transacted at any regular meeting of the
Board of Directors.
3.7 Special Meetings; Notice and Waiver of Notice
Special meetings of the Board of Directors shall be called by the
Secretary or an Assistant Secretary on the request of the Chairman of the
Board and Chief Executive Officer, or the President of a Division, or a Vice
Chairman of the Board, or on the request in writing of one-third of the whole
Board of Directors, stating the purpose or purposes of such meeting. Notices
of special meetings shall be mailed to each director, addressed to him at his
residence or usual place of business, not later than three (3) days before the
day on which the meeting is to be held, or shall be sent to him at either of
such places by telegraph, or be communicated to him personally or by
telephone, not later than the day before such day of meeting. Notice of any
meeting of the Board of Directors need not be given to any director if he
shall sign a written waiver thereof either before or after the time stated
therein for such meeting, or if he shall be present at the meeting and
participate in the business transacted thereat; and any and all business
transacted at any meeting of the Board of Directors shall be fully effective
without any notice thereof having been given, if all the members shall be
present thereat. Unless limited by law, the Certificate of Incorporation, the
By-Laws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
3.8 Organization
The Chairman of the Board and Chief Executive Officer shall preside
at all meetings of the Board of Directors at which he is present. If the
Chairman of the Board and Chief Executive Officer shall be absent from any
meeting of the Board of Directors, the duties otherwise provided in this
Section 3.8 to be performed by him at such meeting shall be performed at such
meeting by one of the directors chosen by the members of the Board of
Directors present at such meeting. The Secretary of the Corporation shall act
as the secretary at all meetings of the Board of Directors and in his absence
a temporary secretary shall be appointed by the chairman of the meeting.
3.9 Quorum and Adjournment
Except as otherwise provided by Section 3.15 of this Article III, at
every meeting of the Board of Directors a majority of the total number of
directors shall constitute a quorum. Except as otherwise provided by law or
by these By-Laws, the vote 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. In the absence of a quorum, any meeting may be adjourned, from
time to time, until a quorum is present. No notice of any adjourned meeting
need be given other than by announcement at the meeting that is being
adjourned.
3.10 Voting
On any question on which the Board of Directors shall vote, the names
of those voting and their votes shall be entered in the minutes of the meeting
when any member of the Board of Directors so requests.
3.11 Acting Without a Meeting
Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or such committee, as the case may
be, consent thereto in writing and such writing or writings are filed with the
minutes of proceedings of the Board of Directors or the committee.
3.12 Telephonic Meetings
Members of the Board of Directors or of a committee thereof, may
participate in meetings of the Board of Directors or committee thereof by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting, pursuant to this provision, shall constitute
presence in person at such meeting.
3.13 Resignations
Any director may resign at any time either by oral tender of
resignation at any meeting of the Board of Directors or by oral tender to the
Chairman of the Board and Chief Executive Officer, or by written notice
thereof to the Corporation. Any resignation shall be effective immediately
unless some other time is specified for it to take effect. Acceptance of any
resignation shall not be necessary to make it effective unless such
resignation is tendered subject to such acceptance.
3.14 Removal of Directors
Any director may be removed, either for or without cause, at any
time, by action of the holders of record of a majority of the shares of common
stock of the Corporation present in person or by proxy at a meeting of holders
of such shares and entitled to vote thereon, and the vacancy in the Board of
Directors caused by any such removal may be filled by action of such
stockholders at such meeting or at any subsequent meeting, or, except as
otherwise provided by law, by the Board of Directors then in office, although
less than a quorum, or by a single remaining director.
3.15 Filling of Vacancies Not Caused by Removal
Except as otherwise provided by law, in case of any increase in the
number of directors, or of any vacancy created by death, resignation,
disqualification or increase in the number of authorized directors, the
additional director or directors may be elected or the vacancy or vacancies
may be filled, as the case may be, by the Board of Directors then in office,
although less than a quorum, or by a single remaining director, or by the
stockholders. The directors so chosen shall hold office until their successors
are elected and qualify or until such directors sooner die, resign, are
removed or cease to be qualified as directors.
ARTICLE IV: COMMITTEES OF THE BOARD OF DIRECTORS
4.1 Establishment of Committees
The Board of Directors may, by resolution passed by a majority of the
whole Board, appoint one or more committees of the Board of Directors, which
shall have such powers and duties as the Board of Directors may properly
determine. Any such committee, to the extent provided in the resolutions
adopted by the Board of Directors, shall have and may exercise all the power
and authority of the Board of Directors in the management of the property and
business of the Corporation, and may authorize the seal of the Corporation to
be impressed upon all papers which may require it; provided, however, that
such powers and authority shall be subject to applicable provisions of law,
and that no such committee shall have the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. All acts done by any such
committee within the scope of its powers and duties pursuant to these By-Laws
and the resolutions adopted by the Board of Directors shall be deemed to be,
and may be certified as being, done or conferred under authority of the Board
of Directors. The Secretary or any Assistant Secretary is empowered to
certify that any resolution duly adopted by any such committee is binding upon
the Corporation and to execute and deliver such certifications from time to
time as may be necessary or proper to the conduct of the business of the
Corporation.
4.2 Committee Members
Each member of any such committee shall hold office until his
successor is elected and has qualified, unless he sooner dies, resigns, or is
removed. The number of directors which shall constitute any committee shall be
determined by the whole Board of Directors from time to time. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee.
4.3 Committee Secretary
The Board of Directors may elect a secretary of any such committee.
If the Board of Directors does not elect such a secretary, the committee shall
do so. The secretary of any committee need not be a member of the committee,
but shall be selected from a member of the staff of the office of the
Secretary of the Corporation, unless otherwise provided by the Board of
Directors.
4.4 Minutes of Committee Meetings
The secretary of each committee shall keep regular minutes of the
meetings of the committee, and shall provide copies of the minutes to the
Secretary of the Corporation, unless otherwise provided by the Board of
Directors.
4.5 Meetings
Meetings of committees of the Board of Directors may be held at any
place, within or without the State of Delaware, as shall from time to time be
designated by the Board of Directors or the committee in question. Regular
meetings of any committee shall be held at such times as may be determined by
resolution of the Board of Directors or the committee in question and no
notice shall be required for any regular meeting. A special meeting of any
committee shall be called by resolution of the Board of Directors, or by the
Secretary or an Assistant Secretary upon the request of any member of the
committee. Notices of special meetings shall be mailed to each member of the
committee in question no later than two (2) days before the day on which the
meeting is to be held, or shall be sent to him by telegraph, or be delivered
to him personally or by telephone, no later than the day before such meeting.
Notices of any such meeting need not be given to any such member, however, if
he shall sign a written waiver thereof, whether before or after the meeting,
or if he shall be present at the meeting and participate in the business
transacted thereat; and any and all business transacted at any meeting of any
committee shall be fully effective without any notice thereof having been
given, if all the members of the committee shall be present thereat. Unless
limited by law, the Certificate of Incorporation, these By-Laws, or by the
terms of the notice thereof, any and all business may by transacted at any such
special meeting without the notice thereof having so specifically enumerated
the matters to be acted upon.
4.6 Action Without a Meeting
Any action required or permitted to be taken at any meeting of a
committee of the Board of Directors may be taken without a meeting, if all
members of such committee consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the committee.
4.7 Telephonic Meetings
Members of a committee of the Board of Directors may participate in
meetings of the committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting, pursuant to
this provision, shall constitute presence in person at such meeting.
ARTICLE V: INDEMNIFICATION
5.1 The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, or member of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
5.2 The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer or member of another Corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no such indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in consideration of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
5.3 To the extent that any person referred to in Sections 5.1 or
5.2 shall be successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections 5.1 or 5.2 or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
5.4 The Corporation may, to the extent deemed advisable by the
Board of Directors, indemnify any person who is or was an employee or agent
(other than a director or officer) of the Corporation, or is or was serving at
the request of the Corporation as an employee or agent (other than a director,
office or member) of another corporation, partnership, joint venture, trust or
other enterprise if such person would be entitled to such indemnity under the
provisions of Sections 5.1, 5.2 or 5.3 if such person had been a director or
officer of the Corporation or a director, officer or member of such other
corporation, partnership, joint venture, trust or other enterprise.
5.5 Any indemnification under paragraphs 5.1, 5.2 or 5.4 (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, member, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 5.1 and 5.2.
Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (c) by the stockholders.
5.6 Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the manner provided in paragraph 5.5 upon receipt of an
undertaking by or on behalf of the director, officer, member, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this Article
V.
5.7 The indemnification provided by this Article V shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any statute, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
member, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
5.8 The Board of Directors may authorize, by a vote of a majority
of a quorum of the Board of Directors, the Corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of this
Article V or of the General Corporation Law of the State of Delaware.
5.9 For the purposes of this Article V, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
5.10 For purposes of this Article V, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to
in this Article V.
5.11 No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this limitation shall
not eliminate or limit the liabilities of the directors (a) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (c) under Section 174 of the General Corporation
Law of the State of Delaware, or (d) for any transaction from which the
director derived an improper personal benefit; provided further, that this
limitation shall not eliminate or limit the liability of a director for any
act or omission occurring prior to the adoption of these By-Laws.
ARTICLE VI: OFFICERS
6.1 Officers
The officers of the Corporation shall be: a Chairman of the Board
and Chief Executive Officer; a President and Chief Operating Officer of the
Dean Witter Capital Division; a President and Chief Operating Officer of the
Dean Witter Financial Division; one or more Senior Executive Vice Presidents;
one or more Executive Vice Presidents; one or more Senior Vice Presidents; one
or more First Vice Presidents; one or more Vice Presidents; a Secretary; a
Treasurer; and a Controller. The Board of Directors may also elect and
specifically identify as officers of the Corporation: one or more Vice
Chairmen of the Board; a Chief Financial Officer; one or more Assistant Vice
Presidents; one or more Assistant Secretaries; one or more Assistant
Treasurers and one and one or more Assistant Controllers as in its judgment
may be necessary or desirable. The officers of the Corporation shall be
elected by the Board of Directors and the Board of Directors shall not
delegate this authority to any committee thereof. Any number of officers may
be held by the same person, unless the Certificate of Incorporation or these
By-Laws otherwise provide.
6.2 Other Officers; Agents
The Board of Directors may elect such other officers and appoint such
agents as it shall deem necessary or desirable, who shall exercise such powers
and perform such duties as shall be determined from time to time by the Board
of Directors.
6.3 Terms of Office
The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall elect the officers of the Corporation.
6.4 Vacancies
If any vacancy shall occur in any corporate office, the Board of
Directors may elect a successor to fill such vacancy.
6.5 Removal of Officers
Any officer may be removed at any time, either for or without cause,
by the affirmative vote of a majority of the Board of Directors.
6.6 Resignations
Any officer may resign at any time by giving written notice thereof
to the Board of Directors. A resignation shall take effect immediately unless
some other date is specified in the notice. Acceptance of any resignation
shall not be necessary to make it effective, unless such resignation is
tendered subject to such acceptance.
6.7 Chairman of the Board and Chief Executive Officer
The Chairman of the Board and Chief Executive Officer shall be a
member of the Board of Directors and shall be an officer of the Corporation.
He shall be the chief executive officer of the Corporation and shall direct,
coordinate and control the Corporation's business and activities and its
operating expenses and capital expenditures, shall have general authority to
exercise all the powers necessary for the chief executive officer of the
Corporation and shall perform such other duties and have such other powers as
may be prescribed by the Board of Directors or these By-Laws, all in
accordance with basic policies as established by and subject to the control of
the Board of Directors. He shall preside at all meetings of the Board of
Directors at which he is present. In the absence or disability of the Chairman
of the Board and Chief Executive Officer, his duties shall be performed and
his authority may be exercised by a director designated for this purpose by
the Board of Directors.
6.8 Vice Chairman of the Board
The Vice Chairmen of the Board shall be members of the Board of
Directors and Officers of the Corporation and shall perform such duties and
have such powers as may be prescribed by the Board of Directors by the
Chairman of the Board and Chief Executive Officer or these By-Laws.
6.9 Presidents of the Dean Witter Capital and
Dean Witter Financial Divisions
The Presidents of the Dean Witter Capital and the Dean Witter
Financial Divisions shall be officers of the Corporation, shall serve as the
chief operating officers of their respective Divisions, and shall perform such
duties and have such powers as may be prescribed by the Board of Directors, by
the Chairman of the Board and Chief Executive Officer, or by these By-Laws.
6.10 Senior Executive Vice Presidents
The Senior Executive Vice Presidents of the Corporation shall perform
such duties and have such powers as may, from time to time, be assigned to
them by the Board of Directors, by the Chairman of the Board and Chief
Executive Officer, or by the President of a Division.
6.11 Executive Vice Presidents
The Executive Vice Presidents of the Corporation shall perform such
duties and have such powers as may, from time to time, be assigned to them by
the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, or by the President of a Division.
6.12 Senior Vice Presidents
The Senior Vice Presidents of the Corporation shall perform such
duties and have such powers as may, from time to time, be assigned to them by
the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, by the President of a Division, or by an Executive Vice President.
6.13 First Vice Presidents
The First Vice Presidents of the Corporation shall perform such
duties and have such powers as may, from time to time, be assigned to them by
the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, by the President of a Division, or by an Executive Vice President.
6.14 Vice Presidents
The Vice Presidents of the Corporation shall perform such duties and
have such powers as may, from time to time, be assigned to them by the Board
of Directors, by the Chairman of the Board and Chief Executive Officer, by the
President of a Division, or by an Executive Vice President.
6.15 Secretary
The Secretary shall attend to the giving of notice of all meetings of
stockholders and of the Board of Directors and committees thereof and shall
keep minutes of all proceedings at meetings of the stockholders and of the
Board of Directors at which he is present, as well as of all proceedings at
all meetings of such other committees of the Board of Directors at which he
has served a secretary and, where some other person has served as secretary
thereto, the Secretary shall maintain custody of the minutes of such
proceedings. He shall have charge of the corporate seal and he or any
Assistant Secretary shall have authority to attest any and all instruments or
writings to which the same may be affixed. He shall keep and account for all
books, documents, papers and records of the Corporation, except those for
which some other officer or agent is properly accountable. He shall generally
perform all the duties usually appertaining to the office of Secretary of a
corporation and shall perform such other duties and have such other powers as
may be prescribed by the Board of Directors or these By-Laws. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.
6.16 Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors, or if there be
no such determination, the Assistant Secretary designated by the Board of
Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as may be prescribed by the Board of
Directors or these By-Laws.
6.17 Chief Financial Officer
The Chief Financial Officer shall have responsibility for the
administration of the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer
and the Controller. The Chief Financial Officer shall render to the Board of
Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all of the transactions effected by the Treasurer and
Controller and of the financial condition of the Corporation. He shall
generally perform all the duties usually appertaining to the affairs of a
Chief Financial Officer of a corporation and shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
these By-Laws.
6.18 Treasurer
The Treasurer shall have the custody of the corporate funds and
securities and shall deposit all moneys, and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors or other person duly authorized by the
Board to so designate. He shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements. If required by the Board of Directors, he shall give the
Corporation a bond, in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money or other property of whatever kind in his possession
or under his control belonging to the Corporation. Except as otherwise
provided by the Board of Directors or directed by the Chairman of the Board
and Chief Executive Officer, the Treasurer shall perform all other necessary
acts and duties in connection with administration of the financial affairs of
the Corporation, shall generally perform all duties appertaining to the office
of treasurer of a corporation and shall perform such other duties and have
such other powers as may be prescribed by the Board of Directors or these
By-Laws.
6.19 Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors, or
if there be no such determination, the Assistant Treasurer designated by the
Board of Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as may be prescribed by the Board
of Directors or these By-Laws.
6.20 Controller
The Controller shall prepare and have the care and custody of
the books of account of the Corporation. He shall keep a full and accurate
account of all moneys, received and paid on account of the Corporation, and
shall render a statement of his accounts whenever the Board of Directors shall
require. He shall generally perform all the duties usually appertaining to
the affairs of the Controller of a corporation and shall perform such other
duties and have such other powers as may be prescribed by the Board of
Directors or these By-Laws. When required by the Board of Directors, he shall
give bonds for the faithful discharge of his duties in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to
the Corporation, in the case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control and belonging to the
Corporation.
6.21 Assistant Controller
The Assistant Controller, or if there shall be more than one,
the Assistant Controllers in the order determined by the Board of Directors,
or if there be no such determination, the Assistant Controller designated by
the Board of Directors, shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties and have such other powers as may be prescribed by the Board
of Directors or these By-Laws.
6.22 Additional Powers and Duties
In addition to the foregoing especially enumerated duties and
powers, the several officers of the Corporation shall perform such other
duties and exercise such further powers as the Board of Directors may, from
time to time, determine, or as may be assigned to them by any superior officer.
6.23 Appointed Officers
Any group, division, department or other organizational
component or any function of the Corporation may establish positions
identified as offices of the respective organizational component or function.
The incumbents of such offices (herein referred to as "appointed officers")
shall not constitute nor be identified as officers of the Corporation. The
titles of such offices shall in all cases contain, as an integral part of the
title, a reference to the proper name of the organizational component or
function within which such office exists.
6.24 Appointment, Term and Removal of Appointed Officers
Officers may be appointed by the Chief Executive Officer and by
the Chief Operating Officers, subject to the approval of the Chief Executive
Officer or his delegate. The Chief Executive Officer and the Chief Operating
Officer may, at any time, remove any appointed officer, without notice, or
accept his resignation. No term of office shall be established for any
appointed officer.
6.25 Duties of Appointed Officers
An appointed officer shall perform such duties (not including
duties normally performed by an officer of the Corporation) as may, from time
to time, be assigned to him by the officer of the Corporation having management
responsibility for the organizational component or function to which such
appointed officer is assigned.
ARTICLE VII: STOCK AND TRANSFERS OF STOCK
7.1 Stock Certificates
The stock of the Corporation shall be represented by
certificates signed by the Chairman of the Board and Chief Executive Officer
or a Vice President, and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, and sealed with a seal of the Corporation.
7.2 Transfer of Stock
Registration of a transfer of stock shall be made on the books
of the Corporation only upon presentation by the person named in the
certificate evidencing such stock, or by an attorney lawfully constituted in
writing, and upon surrender and cancellation of such certificate, with duly
executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signature as the
Corporation or its agents may reasonably require.
7.3 Lost, Stolen or Destroyed Certificates
In case may certificate of stock shall be lost, stolen or
destroyed, the Board of Directors, in its discretion, or any officer or
officers thereunto duly authorized by the Board of Directors, may authorize the
issuance of a substitute certificate in the place of the certificate so lost,
stolen or destroyed; provided, however, that, in each such case, the
Corporation may require the owner of the lost, stolen or destroyed certificate
or his legal representative, to give the Corporation evidence which the
Corporation determines in its discretion is satisfactory of the loss, theft or
destruction of such certificate and of the ownership thereof, and may also
require a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
7.4 Fixing of Record Date
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix a record date which
shall not be more than sixty (60) nor less than ten (10 days) before the date
of such meeting, nor more than sixty (60) days prior to any other action.
7.5 Registered Stockholders
The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim or interest in
such share on the part of any other person., whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VIII: GENERAL PROVISIONS
8.1 Seal
The seal of the Corporation shall have inscribed thereon the
name of the Corporation, the year of its organization and the state of its
incorporation.
8.2 Fiscal Year
The fiscal year of the Corporation shall be determined by the
Board of Directors.
ARTICLE IX: AMENDMENTS
The By-Laws may be altered, amended or repealed, from time to
time, by the Board of Directors, except as expressly prohibited in any By-Laws
made from time to time by holders of shares of stock entitled to vote thereon.
The By-Laws may be altered, amended or repealed at any annual or special
meeting of stockholders; provided notice of such proposed alteration,
amendment or repeal be included in the notice of such annual or special
meeting.
