EXHIBIT 3(II)
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BY-LAWS
OF
MERRILL LYNCH & CO., INC.
_________
Effective February 26, 2001
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INDEX
to
BY-LAWS
of
MERRILL LYNCH & CO., INC.
PAGE
ARTICLE I - OFFICES........................................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting......................................... 1
Section 2. Special Meetings....................................... 1
Section 3. Notice of, and Business at, Meetings................... 1
Section 4. Waiver of Notice....................................... 3
Section 5. Organization........................................... 3
Section 6. Inspectors of Election................................. 3
Section 7. Stockholders Entitled to Vote.......................... 4
Section 8. Quorum and Adjournment................................. 4
Section 9. Order of Business...................................... 4
Section 10. Vote of Stockholders................................... 4
Section 11. Shares Entitled to More or Less Than One Vote.......... 5
ARTICLE III - BOARD OF DIRECTORS
Section 1. Election and Term...................................... 5
Section 2. Qualification.......................................... 5
Section 3. Number................................................. 5
Section 4. General Powers......................................... 5
Section 5. Place of Meetings...................................... 6
Section 6. Organization Meetings.................................. 6
Section 7. Regular Meetings....................................... 6
Section 8. Special Meetings; Notice and Waiver of Notice.......... 6
Section 9. Organization of Meetings............................... 7
Section 10. Quorum and Manner of Acting............................ 7
Section 11. Voting................................................. 7
Section 12. Action without a Meeting............................... 7
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PAGE
Section 13. Resignations........................................... 8
Section 14. Removal of Directors................................... 8
Section 15. Vacancies.............................................. 8
Section 16. Directors' Compensation................................ 8
ARTICLE IV - COMMITTEES
Section 1. Constitution and Powers................................ 8
Section 2. Place of Meetings...................................... 9
Section 3. Meetings; Notice and Waiver of Notice.................. 9
Section 4. Organization of Meetings............................... 9
Section 5. Quorum and Manner of Acting............................ 9
Section 6. Voting................................................. 10
Section 7. Records................................................ 10
Section 8. Vacancies.............................................. 10
Section 9. Members' Compensation.................................. 10
Section 10. Emergency Management Committee......................... 10
ARTICLE V - THE OFFICERS
Section 1. Officers - Qualifications.............................. 11
Section 2. Term of Office; Vacancies.............................. 11
Section 3. Removal of Elected Officers............................ 11
Section 4. Resignations........................................... 11
Section 5. Officers Holding More Than One Office.................. 11
Section 6. The Chairman of the Board.............................. 11
Section 7. The President.......................................... 12
Section 8. The Vice Chairmen of the Board......................... 12
Section 9. The Executive Vice Presidents.......................... 13
Section 10. The Senior Vice Presidents............................. 13
Section 11. The Vice Presidents.................................... 13
Section 12. The Secretary.......................................... 13
Section 13. The Treasurer.......................................... 13
Section 14. Additional Duties and Authority........................ 14
Section 15. Compensation........................................... 14
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ARTICLE VI - STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates..................................... 14
Section 2. Transfers of Stock..................................... 14
Section 3. Lost Certificates...................................... 14
Section 4. Determination of Holders of Record for Certain
Purposes............................................... 15
ARTICLE VII - CORPORATE SEAL
Section 1. Seal................................................... 15
Section 2. Affixing and Attesting................................. 15
ARTICLE VIII - MISCELLANEOUS
Section 1. Fiscal Year............................................ 15
Section 2. Signatures on Negotiable Instruments................... 15
Section 3. References to Article and Section Numbers and to the
By-Laws and the Certificate of Incorporation........... 16
ARTICLE IX - AMENDMENTS.................................................... 16
BY-LAWS
OF
MERRILL LYNCH & CO., INC.
__________
ARTICLE I.
OFFICES
Merrill Lynch & Co., Inc. (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
or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 2. Special Meetings. In addition to such 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 pursuant
to a resolution adopted by the affirmative vote of a majority of the entire
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, and Business at, Meetings.
a. Notice. Except as otherwise provided by law, notice of each
meeting of stockholders shall be given either by delivering a written notice
personally or mailing a written notice to each stockholder of record entitled to
vote thereat or by providing notice in such other form and by such other method
as may be permitted by Delaware law. 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
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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 sixty (60) 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 special 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 filed with the minutes of such meeting.
b. Business. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation who (i)
is a stockholder of record on the date of the giving of the notice provided for
in this Section 3(b) and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) complies with the
notice procedures set forth in this Section 3(b).
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received by the Secretary of the Corporation not less
than fifty (50) days prior to the date of the annual meeting of stockholders;
provided, that in the event that less than 60 days' notice or prior public
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disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which such notice
of the date of the annual meeting was mailed or such public disclosure of the
date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
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No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 3(b), provided, however, that, once
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business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 3(b) shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
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 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
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 V. 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. Inspectors of Election. a. The Chairman of the Board shall,
in advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The Chairman of the Board may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
b. The inspectors shall: (1) ascertain the number of shares
outstanding and the voting power of each; (2) determine the shares represented
at a meeting and the validity of proxies and ballots; (3) count all votes and
ballots; (4) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(5) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The
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inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties.
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, as a record date for the determination
of the stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, 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,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board of Directors establishes such record date. 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, or, if not so specified, at the place 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. 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 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.
Section 10. Vote of Stockholders. Except as otherwise required 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
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the Corporation. Every stockholder entitled to vote 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. 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 be
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 in Sections 14 and 15
of Article III or by the Certificate of Incorporation, directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. Except as otherwise provided by law or by the Certificate of
Incorporation, the affirmative vote of a majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject shall be
the act of the stockholders.
Section 11. Shares Entitled to More or Less than One Vote. If any
class or series of the Corporation's capital stock shall be entitled to more or
less than one vote for any share, on any matter, every reference in the By-Laws
to a majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock.
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 Sections
13, 14 and 15 of this Article III, directors shall be elected at the Annual
Meeting of Stockholders to serve until the Annual Meeting of Stockholders in the
third year following their election and until their successors are elected and
qualify or until their earlier resignation or removal.
Section 2. Qualification. No one shall be a director who is not the
owner of shares of Common Stock of the Corporation. 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 but shall not be less than three
(3) nor more than thirty (30).
Section 4. General Powers. The business, properties and affairs of
the Corporation shall be managed by, or under the direction of, 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
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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
appointed pursuant to Article IV 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 appointed pursuant to Article IV 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 at 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, the President or a Vice Chairman of the
Board, 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, the President or a Vice Chairman of
the Board, as the case may be. Notices of special meetings shall be mailed to
each director, 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 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
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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 meeting shall be performed at such meeting by the
officer prescribed by Section 6 of Article V. 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 of this Article III, or
by Section 1 or Section 8 of Article IV, or by Section 3 of Article V, or by
Article IX, 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 by a member of the Board of Directors in a meeting pursuant to
this Section 10 of Article III 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.
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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. Subject to the rights of the
holders of any series of Preferred Stock or any other class of capital stock of
the Corporation (other than the Common Stock) then outstanding, (i) any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause, by the affirmative vote of the holders of record of
outstanding shares representing at least 80% of the voting power of all the
shares of capital stock of the Corporation then entitled to vote generally in
the election of directors, voting together as a single class, and (ii) any
director may be removed from office at any time, but only for cause, by the
affirmative vote of a majority of the entire Board of Directors.
Section 15. Vacancies. Subject to the rights of the holders of any
series of Preferred Stock or any other class of capital stock of the Corporation
(other than the Common Stock) then outstanding, any vacancies in the Board of
Directors for any reason, including by reason of any increase in the number of
directors, shall, if occurring prior to the expiration of the term of office of
the class in which such vacancy occurs, be filled only by the Board of
Directors, acting by the affirmative vote of a majority of the remaining
directors then in office, although less than a quorum, and any directors so
elected shall hold office until the next election of the class for which such
directors have been elected and until their successors are elected and qualify.
Section 16. Directors' Compensation. Any and all 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.
COMMITTEES
Section 1. Constitution and Powers. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint one or more committees of the Board of Directors, which
committees shall have such powers and duties as the Board of Directors shall
properly determine. Unless otherwise provided by the Board of Directors, no
such other committee of the Board of Directors shall be composed of fewer than
two (2) directors.
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Section 2. Place of Meetings. Meetings of any committee 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 such committee.
Section 3. Meetings; Notice and Waiver of Notice. Regular meetings of
any committee of the Board of Directors shall be held at such times as may be
determined by resolution either of the Board of Directors or of such committee
and no notice shall be required for any regular meeting. Special meetings of
any committee shall be called by the secretary thereof upon request of any two
members thereof. Notice of any special meeting of any committee shall be in
form approved by the Chairman of the Board, the President or a Vice Chairman of
the Board, 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 any 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 any 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 any
committee as well.
Section 4. Organization of Meetings. The most senior officer of the
Corporation present, if any be members of the committee, and, if not, the
director present who has served the longest as a director, except as otherwise
expressly provided by the Board of Directors or the committee, shall preside at
all meetings of any committee. The Secretary of the Corporation, except as
otherwise expressly provided by the Board of Directors, shall act as secretary
at all meetings of any 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 any committee then in office 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 such committee. In
the absence of a quorum, a majority of the members of any committee present, or,
if two or fewer members shall be present, any member of the 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 any
committee.
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Section 6. Voting. On any question on which any committee shall vote,
the names of those voting and their votes shall be entered in the minutes of the
meeting if any member of such committee so requests.
Section 7. Records. All committees shall keep minutes of their acts
and proceedings, which shall be submitted at the next regular meeting of the
Board of Directors unless sooner submitted at an organization or special 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 8. Vacancies. Any vacancy among the appointed members or
alternate members of any committee of the Board of Directors may be filled by
affirmative vote of a majority of the whole Board of Directors.
Section 9. Members' Compensation. Members of all committees 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 any committee from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 10. Emergency Management Committee. In the event that a
quorum 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 filling 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.
ARTICLE V.
THE OFFICERS
Section 1. Officers - Qualifications. The elected officers of the
Corporation shall be a Chairman of the Board, a Secretary and a Treasurer and
may also include one or more Vice Chairmen of the Board, a President, one or
more Executive Vice
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Presidents, one or more Senior Vice Presidents and one or more Vice Presidents.
The elected officers shall be elected by the Board of Directors. The Chairman of
the Board, the President and each Vice Chairman of the Board, shall be selected
from the directors. Assistant Secretaries, Assistant Treasurers and such other
officers as may be deemed necessary or appropriate may be appointed by the Board
of Directors or may be appointed pursuant to Section 6 of this Article V.
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 3 and 4,
and subject to the provisions of Section 6, of this Article V, 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 of Directors and the Chairman of the Board. 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 and, in the case of any officer not more
senior than a Senior Vice President, by affirmative vote of a majority of the
whole committee of the Board of Directors so empowered at any regular meeting or
at any special meeting called for the purpose.
Section 4. Resignations. 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. The Chairman of the Board shall
be the chief executive officer of the Corporation. He shall direct, coordinate
and control the Corporation's business and activities and its operating expenses
and capital expenditures, 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 and subject to the control of the
Board of Directors. He shall be responsible for the employment or appointment
of employees, agents and officers (except officers to be elected by the Board of
Directors pursuant to Section 1 of this Article V) as may be required for the
conduct of the business and the attainment of the objectives of the Corporation,
and shall have authority to fix compensation as provided in Section 15 of this
Article V. He shall have authority to suspend or to remove any employee, agent
or appointed officer of the Corporation and to suspend
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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. He shall have general authority
to execute bonds, deeds and contracts in the name and on behalf of the
Corporation. 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 officer of the
Corporation 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, if any, shall be the chief
operating officer of the Corporation. He shall implement the general
directives, plans and policies formulated by the Chairman of the Board pursuant
to the By-Laws, in general shall have authority to exercise all powers delegated
to him by the Chairman of the Board and shall establish operating and
administrative plans and policies and direct and coordinate the Corporation's
organizational components, within the scope of the authority delegated to him by
the Board of Directors or the Chairman of the Board. 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 V) as may be required to carry
on the operations of the business and authority to fix compensation of such
employees, agents and officers as provided in Section 15 of this Article V. He
shall have authority to suspend or to remove any employee or agent of the
Corporation (other than officers). As provided in Section 6 of this Article V,
in the absence of the Chairman of the Board, the President shall perform all the
duties and exercise the authority of the Chairman of the Board. 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 officer of the Corporation 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 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
Chairman of the Board or the President.
Section 9. 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
Chairman of the Board or the President.
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Section 10. 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
Chairman of the Board, the President, any Vice Chairman of the Board or any
Executive Vice President.
Section 11. The Vice Presidents. The several 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 Chairman of the
Board, the President, any Vice Chairman of the Board or any Executive Vice
President.
Section 12. 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 and Section 9 of
Article III, 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 committees of the Board of Directors at which
he has served as secretary, and where some other person has served as secretary
thereto, the Secretary shall maintain custody of the minutes of such
proceedings. As provided in Section 2 of Article VII, 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
Chairman of the Board shall perform his duties.
Section 13. 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. Except as
otherwise provided by the Board of Directors or in the Corporation's plan of
organization, the Treasurer shall keep a full and accurate account of all moneys
received and paid on account of the Corporation, shall render a statement of
accounts whenever the Board of Directors shall require, 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, the Treasurer shall give bonds for the faithful
discharge of the duties of that office 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 such duties.
Section 14. Additional Duties and Authority. In addition to the
foregoing specifically enumerated duties and authority, the several officers of
the Corporation shall perform such other duties and may exercise such further
authority as the Board of Directors may, from time to time, determine, or as may
be assigned to them by any superior officer.
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Section 15. Compensation. Except as fixed or controlled by the Board
of Directors or otherwise, compensation of all officers and employees shall be
fixed by the Chairman of the Board, or by the President within the limits
approved by the Chairman of the Board, or by other officers of the Corporation
exercising authority granted to them under the plan of organization of the
Corporation.
ARTICLE VI.
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 or a Vice Chairman of
the Board, 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 a 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.
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 canceled 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 Holders of Record for Certain Purposes.
In order to determine the stockholders or other holders of securities entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to
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exercise any rights in respect of any change, conversion or exchange of capital
stock or other securities 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 or securities may be exercised, and in
such case only holders 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 or other securities on the books of the Corporation after any such
record date fixed as aforesaid. No record date shall precede the date on which
the Board of Directors establishes such record date.
ARTICLE VII.
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 "1973".
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 VIII.
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.
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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. Whenever in the By-Laws 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,
including all documents deemed by the General Corporation Law of the State of
Delaware to constitute a part thereof.
ARTICLE IX.
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 be 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.