EXHIBIT 3.2
_____________________________________
BY-LAWS
OF
CHENIERE ENERGY, INC.
_____________________________________
As amended by the Board of
Directors by resolutions
through April 7, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I. OFFICES......................................................... 1
SECTION 1.1. Registered Office............................................... 1
SECTION 1.2. Other Offices................................................... 1
ARTICLE II. MEETING OF STOCKHOLDERS......................................... 1
SECTION 2.1. Annual Meetings................................................. 1
SECTION 2.2. Special Meetings................................................ 1
SECTION 2.3. Notice of Meetings.............................................. 1
SECTION 2.4. Waiver of Notice................................................ 2
SECTION 2.5. Adjournments.................................................... 2
SECTION 2.6. Quorum.......................................................... 3
SECTION 2.7. Voting.......................................................... 3
SECTION 2.8. Proxies......................................................... 3
SECTION 2.9. Stockholders' Consent in Lieu of Meeting........................ 3
ARTICLE III. BOARD OF DIRECTORS.............................................. 4
SECTION 3.1. General Powers.................................................. 4
SECTION 3.2. Number and Term of Office....................................... 4
SECTION 3.3. Resignation..................................................... 4
SECTION 3.4. Removal......................................................... 4
SECTION 3.5. Vacancies....................................................... 4
SECTION 3.6. Meetings........................................................ 4
SECTION 3.7. Committees of the Board......................................... 5
SECTION 3.8. Directors' Consent in Lieu of Meeting........................... 6
SECTION 3.9. Action by Means of Telephone or Similar Communications Equipment 6
SECTION 3.10. Compensation.................................................... 6
ARTICLE IV. OFFICERS........................................................ 7
SECTION 4.1. Officers........................................................ 7
SECTION 4.2. Authority and Duties............................................ 7
SECTION 4.3. Term of Office, Resignation and Removal......................... 7
SECTION 4.4. Subordinate Officers............................................ 7
SECTION 4.5. Vacancies....................................................... 7
SECTION 4.6. The Chairman.................................................... 7
SECTION 4.7. The Vice-Chairman............................................... 8
SECTION 4.8. The President................................................... 8
SECTION 4.9. Vice Presidents................................................. 8
SECTION 4.10. The Secretary................................................... 8
SECTION 4.11. Assistant Secretaries........................................... 8
SECTION 4.12. The Treasurer................................................... 8
SECTION 4.13. Assistant Treasurers............................................ 9
SECTION 4.14. Compensation.................................................... 9
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PAGE
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SECTION 4.15. Interested Directors; Quorum.................................... 9
ARTICLE V. SHARES AND TRANSFERS OF SHARES.................................. 10
SECTION 5.1. Certificates Evidencing Shares.................................. 10
SECTION 5.2. Stock Ledger.................................................... 10
SECTION 5.3. Transfers of Shares............................................. 10
SECTION 5.4. Addresses of Stockholders....................................... 10
SECTION 5.5. Lost, Destroyed and Mutilated Certificates...................... 10
SECTION 5.6. Regulations..................................................... 11
SECTION 5.7. Fixing Date for Determination of Stockholders of Record......... 11
ARTICLE VI. SEAL............................................................ 11
SECTION 6.1. Seal............................................................ 11
ARTICLE VII. FISCAL YEAR..................................................... 11
SECTION 7.1. Fiscal Year..................................................... 11
ARTICLE VIII. VOTING OF SHARES IN OTHER CORPORATIONS.......................... 11
SECTION 8.1. Voting of Shares in Other Corporations.......................... 11
ARTICLE IX INDEMNIFICATION AND INSURANCE................................... 11
SECTION 9.1. Indemnification................................................. 11
SECTION 9.2. Insurance for Indemnification................................... 13
ARTICLE X. AMENDMENTS...................................................... 14
SECTION 10.1. Amendments...................................................... 14
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BY-LAWS
OF
CHENIERE ENERGY, INC.
ARTICLE I.
OFFICES
SECTION 1.1. Registered Office. Unless and until otherwise determined by
the Board of Directors of Cheniere Energy, Inc. (the "Corporation"), the
registered office of the Corporation in the State of Delaware shall be at the
office of Corporation Service Company, 1013 Centre Road, City of Wilmington
19805, County of New Castle and the registered agent in charge thereof shall be
Corporation Service Company.
SECTION 1.2. Other Offices. The Corporation may also have an office or
offices at any other place or places within or without the State of Delaware as
the Board of Directors of the Corporation (the "Board") may from time to time
determine or the business of the Corporation may from time to time require.
ARTICLE II.
MEETING OF STOCKHOLDERS
SECTION 2.1. Annual Meetings. The annual meeting of stockholders of the
Corporation for the election of directors of the Corporation ("Directors") and
for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the
Board and designated in the notice or waiver of notice of such annual meeting;
provided, however, that no annual meeting of stockholders need be held if all
actions, including the election of Directors, required by the General
Corporation Law of the State of Delaware (the "General Corporation Law") to be
taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION 2.2. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called by the Board or the Chairman of the Board, the
Vice-Chairman, the President or the Secretary of the Corporation or by the
recordholders of at least a majority of the shares of common stock of the
Corporation issued and outstanding ("Shares") and entitled to vote thereat, to
be held at such place, date and time as shall be designated in the notice or
waiver of notice thereof.
SECTION 2.3. Notice of Meetings. (a) Except as otherwise provided by law,
written notice of each annual or special meeting of stockholders stating the
place, date and time of such meeting and, in the case of a special meeting, the
purpose or purposes for which such meeting is to be held, shall be given
personally or by first-
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class mail (airmail in the case of international communications) to each
recordholder of Shares (a "Stockholder") entitled to vote thereat, not less than
10 nor more than 60 days before the date of such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the Stockholder at such Stockholder's address as it appears
on the records of the Corporation. If, prior to the time of transmittal of
notice, the Secretary of the Corporation (the "Secretary") shall have received
from any Stockholder a written request that notices intended for such
Stockholder are to be transmitted to some address other than the address that
appears on the records of the Corporation, notices intended for such Stockholder
shall be transmitted to the address designated in such request.
(b) Notice of a special meeting of Stockholders may be given by the
person or persons calling the meeting, or, upon the written request of such
person or persons, such notice shall be given by the Secretary on behalf of such
person or persons. If the person or persons calling a special meeting of
Stockholders give notice thereof, such person or persons shall deliver a copy of
such notice to the Secretary. Each request to the Secretary for the giving of
notice of a special meeting of Stockholders shall state the purpose or purposes
of such meeting.
(c) Whenever notice is required to be given under any statute or the
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") or these Bylaws to any Stockholder to whom (1) notice of two
consecutive annual meetings, and all notice of meetings or of the taking of
action by written consent without a meeting to such person during the period
between such two consecutive annual meetings or (2) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities
during a twelve month period, have been mailed addressed to such person at his
address as shown on the records of the Corporation and have been returned
because undeliverable, the giving of notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice to such
person shall have the same force and effect as if such notice be given to such
person shall be reinstated. In the event that the action taken by the
Corporation is such as to require the filing of a certificate under any of the
other sections of the General Corporation Law, the certificate need not state
that notice was not given to persons to whom notice was not required to be given
pursuant to this Section 2.03(c).
SECTION 2.4. Waiver of Notice. Notice of any annual or special meeting of
Stockholders need not be given to any Stockholder who files a written waiver of
notice with the Secretary, signed by the person entitled to notice, whether
before or after such meeting. Neither the business to be transacted at, nor the
purpose of, any meeting of Stockholders need be specified in any written waiver
of notice thereof. Attendance of a Stockholder at a meeting, in person or by
proxy, shall constitute a waiver of notice of such meeting, except when such
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the grounds that
the notice of such meeting was in adequate or improperly given.
SECTION 2.5. Adjournments. Any Stockholders' meeting, annual or special,
whether or not a quorum (as defined in Section 2.06 hereinafter) is present, may
be adjourned by vote of a majority of the shares present, either in person or by
proxy.
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Whenever a meeting of Stockholders, annual or special, is adjourned to another
date, time or place, notice need not be given of the adjourned meeting if the
date, 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 entitled to vote
thereat. At the adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
SECTION 2.6. Quorum. Except as otherwise provided by law or the
Certificate of Incorporation, the recordholders of a majority of the Shares
entitled to vote thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of Stockholders, whether
annual or special. If, however, such quorum shall not be present in person or
by proxy at any meeting of Stockholders, the meeting may be adjourned from time
to time in accordance with Section 2.05 hereof until a quorum shall be present
in person or by proxy. On all questions, the Stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough Stockholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by a number of shares which would otherwise constitute a majority of a
quorum.
SECTION 2.7. Voting. Each Stockholder shall be entitled to one vote for
each Share held of record by such Stockholder. Except as otherwise provided by
law or the Certificate of Incorporation, when a quorum is present at any meeting
of Stockholders, the vote of the recordholders of a majority of the Shares
constituting such quorum shall decide any question brought before such meeting.
SECTION 2.8. Proxies. Each Stockholder entitled to vote at a meeting of
Stockholders or to express, in writing, consent to or dissent from any action of
Stockholders without a meeting may authorize another person or persons to act
for such Stockholder by proxy. Such proxy shall be filed with the Secretary
before such meeting of Stockholders or such action of Stockholders without a
meeting, at such time as the Board may require. No proxy shall be voted or
acted upon more than three years from its date, unless the proxy provides for a
longer period.
SECTION 2.9. Stockholders' Consent in Lieu of Meeting. Except as may
otherwise be provided by law or in the Certificate of Incorporation, any action
required by the General Corporation Law to be taken at any annual or special
meeting of Stockholders, and any action which may be taken at any annual or
special 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 recordholders of Shares having not less than the
minimum number of votes necessary to authorize or take such action at a meeting
at which the recordholders of all Shares entitled to vote thereon were present
and voted.
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ARTICLE III.
BOARD OF DIRECTORS
SECTION 3.1. General Powers. Except as may otherwise be provided bylaw or
in the Certificate of Incorporation, the business and affairs of the Corporation
shall be managed by the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the
Certificate of Incorporation or these By-laws directed or required to be
exercised or done by Stockholders.
SECTION 3.2. Number and Term of Office. The number of Directors shall be
seven or such other number as shall be fixed from time to time by the Board.
Directors need not be Stockholders. Directors shall be elected at the annual
meeting of Stockholders or, if, in accordance with Section 2.01 hereof, no such
annual meeting is held, by written consent in lieu of meeting pursuant to
Section 2.09 hereof, and each Director shall hold office until his successor is
elected and qualified, or until his earlier death or resignation or removal in
the manner hereinafter provided.
SECTION 3.3. Resignation. Any Director may resign at any time by giving
written notice to the Board, the Chairman of the Board of the Corporation(the
"Chairman") or the Secretary. Such resignation shall take effect at the time
specified in such notice or, if the time be not specified, upon receipt thereof
by the Board, the Chairman or the Secretary, as the case may be. Unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.4. Removal. Any or all of the Directors may be removed, with or
without cause, at any time by vote of the recordholders of a majority of the
Shares then entitled to vote at an election of Directors, or by written consent
of the recordholders of Shares pursuant to Section 2.09 hereof.
SECTION 3.5. Vacancies. Vacancies occurring on the Board as a result of
the removal of Directors without cause may be filled only by vote of the
recordholders of a majority of the Shares then entitled to vote at an election
of Directors, or by written consent of such recordholders pursuant to Section
2.09 hereof. Vacancies occurring on the Board for any other reason, including,
without limitation, vacancies occurring as a result of the creation of new
directorships that increase the number of Directors, may be filled by such vote
or written consent or by vote of the Board or by written consent of the
Directors pursuant to Section 3.08 hereof. If the number of Directors then in
office is less than a quorum, such other vacancies may be filled by vote of a
majority of the Directors then in office or by written consent of all such
Directors pursuant to Section 3.08 hereof. Unless earlier removed pursuant to
Section 3.04 hereof, each Director chosen in accordance with this Section 3.05
shall hold office until the next annual election of Directors by the
Stockholders and until his successor shall be elected and qualified.
SECTION 3.6. Meetings. (a) Annual Meetings. As soon as practicable after
each annual election of Directors by the Stockholders, the Board shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to Section
3.08 hereof.
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(b) Other Meetings. Other meetings of the Board shall be held at
such times as the Chairman, the Vice-Chairman, the President of the
Corporation(the "President"), the Secretary or a majority of the Board shall
from time to time determine.
(c) Notice of Meetings. The Secretary shall give written notice to
each Director of each meeting of the Board, which notice shall state the place,
date, time and purpose of such meeting. Notice of each such meeting shall be
given to each Director, if by mail, addressed to him at his residence or usual
place of business, at least five days before the day on which such meeting is to
be held, or shall be sent to him at such place by telecopy, telegraph, cable, or
other form of recorded communication, or be delivered personally or by telephone
not later than the day before the day on which such meeting is to be held. A
written waiver of notice, signed by the Director entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of any meeting of the Board need be specified in any written waiver of
notice thereof. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except as provided by law.
(d) Place of Meetings. The Board may hold its meetings at such place
or places within or without the State of Delaware as the Board or the Chairman
may from time to time determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting. A majority of the total number of
Directors then in office shall be present in person at any meeting of the Board
in order to constitute a quorum for the transaction of business at such meeting,
and the vote of a majority of those Directors present at any such meeting at
which a quorum is present shall be necessary for the passage of any resolution
or act of the Board, except as otherwise expressly required by law, the
Certificate of Incorporation or these By-laws. In the absence of a quorum for
any such meeting, a majority of the Directors present thereat may adjourn such
meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence:
(i) the Chairman, if any;
(ii) the Vice Chairman, if any,
(iii) the President;
(iv) any Director chosen by a majority of the Directors present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.7. Committees of the Board. The Board may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more Directors. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
or
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disqualified member at any meeting of such committee. In the absence or
disqualification of a member of a 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 Director to act at the
meeting in the place of any such absent or disqualified member. Any committee of
the Board, to the extent provided in the resolution of the Board designating
such committee, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that no such committee shall have such power of
authority in reference to amending the Certificate of Incorporation (except that
such a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board as provided
in Section 151(a) of the General Corporation Law, fix the designations and any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
of stock of the Corporation or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation under Section 251 or 252 of the General
Corporation Law, recommending to the Stockholders the sale, lease or exchange of
all or substantially all the Corporation's property and assets, recommending to
the Stockholders a dissolution of the Corporation or the revocation of a
dissolution, or amending these By-laws; provided further, however, that, unless
expressly so provided in the resolution of the Board designating such committee,
no such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law. Each committee of
the Board shall keep regular minutes of its proceedings and report the same to
the Board when so requested by the Board.
SECTION 3.8. Directors' Consent in Lieu of Meeting. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
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 all
the members of the Board or such committee and such consent is filed with the
minutes of the proceedings of the Board or such committee.
SECTION 3.9. Action by Means of Telephone or Similar Communications
Equipment. Any one or more members of the Board, or of any committee thereof,
may participate in a meeting of the Board or 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 by such means shall constitute presence in person at such meeting.
SECTION 3.10. Compensation. Directors shall not receive any stated salary
for their services as directors or as members of committees, except as fixed or
determined by resolution of the Board of Directors. No such compensation or
reimbursement shall preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
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ARTICLE IV.
OFFICERS
SECTION 4.1. Officers. The officers of the Corporation shall be the
President, the Secretary and a Treasurer and may include a Chairman or two Co-
Chairmen, a Vice-Chairman, one or more Vice Presidents (including, one or more
Executive and/or Senior Vice Presidents), a Chief Financial Officer, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers
as the Board may determine. Any two or more offices may be held by the same
person.
SECTION 4.2. Authority and Duties. All officers shall have such authority
and perform such duties in the management of the Corporation as may be provided
in these By-laws or, to the extent not so provided, by resolution of the Board.
SECTION 4.3. Term of Office, Resignation and Removal. (a) Each officer,
except such officers as may be appointed in accordance with the provision of
Section 4.04 or Section 4.05, shall be appointed by the Board and shall hold
office for such term as may be determined by the Board. Each officer shall hold
office until his successor has been appointed and qualified or his earlier death
or resignation or removal in the manner hereinafter provided. The Board may
require any officer to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice to
the Board, the Chairman, the President or the Secretary. Such resignation shall
take effect at the time specified in such notice or, if the time be not
specified, upon receipt thereof by the Board, the Chairman, the President or the
Secretary, as the case may be. Unless otherwise specified therein, acceptance
of such resignation shall not be necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject
to removal, with or without cause, at any time by the Board or by any officer
upon whom such power of removal may be conferred by the Board.
SECTION 4.4. Subordinate Officers. The Board may empower the President to
appoint such other officers as the business of the Corporation may require, each
of whom shall hold the office for such period, have such authority and perform
such duties as are provided in these Bylaws or as the Board or President may
from time to time determine.
SECTION 4.5. Vacancies. Any vacancy occurring in any office of the
Corporation, for any reason, shall be filled by action of the Board. Unless
earlier removed pursuant to Section 4.03 hereof, any officer appointed by the
Board to fill any such vacancy shall serve only until such time as the unexpired
term of his predecessor expires unless reappointed by the Board.
SECTION 4.6. The Chairman or Co-Chairmen. The Chairman, if one shall be
appointed, or Co-Chairmen, if they shall be appointed, shall have the power to
call special meetings of Stockholders, to call special meetings of the Board
and, if present, to preside at all meetings of Stockholders and all meetings of
the Board. The Chairman or Co-Chairmen shall perform all duties incident to the
office of Chairman of the
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Board and all such other duties as may from time to time be assigned to him or
them by the Board or these By-laws.
SECTION 4.7. The Vice-Chairman. The Vice-Chairman, if one shall be
appointed, shall perform such duties as may from time to time be assigned to him
by the Board or the Chairman, and in the absence or disability of the Chairman,
shall perform the duties and exercise the powers of the Chairman.
SECTION 4.8. The President. The President shall have general and active
management and control of the business and affairs of the Corporation, subject
to the control of the Board, and shall see that all orders and resolutions of
the Board are carried into effect. The President shall perform all duties
incident to the office of President and all such other duties as may from time
to time be assigned to him by the Board or these By-laws.
SECTION 4.9. Vice Presidents. Vice Presidents, if any, in order of their
seniority or in any other order determined by the Board, shall generally assist
the President and perform such other duties as the Board or the President shall
prescribe, and in the absence or disability of the President, shall perform the
duties and exercise the powers of the President.
SECTION 4.10. Chief Financial Officer. The Chief Financial Officer shall
perform such duties as are customary for a chief financial officer to perform
and such other duties as the Board or the President shall prescribe.
SECTION 4.11. The Secretary. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of Stockholders
and shall record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform the same duties for any committee of
the Board when so requested by such committee. He shall give or cause to be
given notice of all meetings of Stockholders and of the Board, shall perform
such other duties as may be prescribed by the Board, the Chairman or the
President and shall act under the supervision of the President. He shall keep
in safe custody the seal of the Corporation and affix the same to any instrument
that requires that the seal be affixed to it and which shall have been duly
authorized for signature in the name of the Corporation and, when so affixed,
the seal shall be attested by his signature or by the signature of the Treasurer
of the Corporation (the "Treasurer") or an Assistant Secretary or Assistant
Treasurer of the Corporation. He shall keep in safe custody the certificate
books and stockholder records and such other books and records of the
Corporation as the Board, the Chairman or the President may direct and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Board, the Chairman or
the President.
SECTION 4.12. Assistant Secretaries. Assistant Secretaries of the
Corporation ("Assistant Secretaries"), if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Secretary
and perform such other duties as the Board or the Secretary shall prescribe,
and, in the absence or disability of the Secretary, shall perform the duties and
exercise the powers of the Secretary.
SECTION 4.13. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall
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disburse the funds of the Corporation under the direction of the Board and the
President. 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, the Chairman or the President shall so request. He shall
perform all other necessary actions 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 treasurer of a
corporation. When required by the Board, he shall give bonds for the faithful
discharge of his duties in such sums and with such sureties as the Board shall
approve.
SECTION 4.14. Assistant Treasurers. Assistant Treasurers of the
Corporation ("Assistant Treasurers"), if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Treasurer
and perform such other duties as the Board or the Treasurer shall prescribe,
and, in the absence or disability of the Treasurer, shall perform the duties and
exercise the powers of the Treasurer.
SECTION 4.15. Compensation. The compensation of the officers of the
Corporation shall be fixed by the Board.
SECTION 4.16. Interested Directors; Quorum. (a) 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 the votes of one
or more of such directors or officers are counted for such purpose, if:
(1) The material facts as to that person's relationship or
interest and as to the contract or transaction are disclosed or
are known to the Board or the Committee, and the Board 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 that person's 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 shareholders; 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
shareholders.
(b) 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.
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ARTICLE V.
SHARES AND TRANSFERS OF SHARES
SECTION 5.1. Certificates Evidencing Shares. Shares shall be evidenced by
certificates in such form or forms as shall be approved by the Board.
Certificates shall be issued in consecutive order and shall be numbered in the
order of their issue, and shall be signed by the Chairman, the President or any
Vice President and by the Secretary, any Assistant Secretary, the Treasurer or
any Assistant Treasurer. Any or all of the signatures on a Certificate may be a
facsimile. In the event any such officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to hold such
office or to be employed by the Corporation before such certificate is issued,
such certificate may be issued by the Corporation with the same effect as if
such officer had held such office on the date of issue.
SECTION 5.2. Stock Ledger. A stock ledger in one or more counterparts
shall be kept by the Secretary, in which shall be recorded the name and address
of each person, firm or corporation owning the Shares evidenced by each
certificate evidencing Shares issued by the Corporation, the number of Shares
evidenced by each such certificate, the date of issuance thereof and, in the
case of cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name Shares stand on the stock ledger of
the Corporation shall be deemed the owner and recordholder thereof for all
purposes.
SECTION 5.3. Transfers of Shares. Registration of transfers of Shares
shall be made only in the stock ledger of the Corporation upon request of the
registered holder of such shares, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or certificates evidencing such Shares properly
endorsed or accompanied by a stock power duly executed, together with such proof
of the authenticity of signatures as the Corporation may reasonably require.
SECTION 5.4. Addresses of Stockholders. Each Stockholder shall designate
to the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to such Stockholder, and, if any Stockholder
shall fail to so designate such an address, corporate notices may be served upon
such Stockholder by mail directed to the mailing address, if any, as the same
appears in the stock ledger of the Corporation or at the last known mailing
address of such Stockholder.
SECTION 5.5. Lost, Destroyed and Mutilated Certificates. Each recordholder
of Shares shall promptly notify the Corporation of any loss, destruction or
mutilation of any certificate or certificates evidencing any Share or Shares of
which he is the recordholder. The Board may, in its discretion, cause the
Corporation to issue a new certificate in place of any certificate theretofore
issued by it and alleged to have been mutilated, lost, stolen or destroyed, upon
the surrender of the mutilated certificate or, in the case of loss, theft or
destruction of the certificate, upon satisfactory proof of such loss, theft or
destruction, and the Board may, in its discretion, require the recordholder of
the Shares evidenced by the lost, stolen or destroyed certificate or his legal
representative to give the Corporation a bond sufficient to indemnify the
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Corporation against any claim made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
SECTION 5.6. Regulations. The Board may make such other rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates evidencing
Shares.
SECTION 5.7. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the Stockholders entitled to notice of
or to vote at any meeting of Stockholders or any adjustment thereof, or to
express consent to, or to dissent from, 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 may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days before the date of such meeting, nor more than 60
days prior to any other such action. A determination of the Stockholders
entitled to notice of or to vote ata meeting of Stockholders shall apply to any
judgment of such meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
ARTICLE VI.
SEAL
SECTION 6.1. Seal. The Board may approve and adopt a corporate seal, which
shall be in the form of a circle and shall bear the full name of the
Corporation, the year of its incorporation and the words "Corporate Seal
Delaware".
ARTICLE VII.
FISCAL YEAR
SECTION 7.1. Fiscal Year. The fiscal year of the Corporation shall end on
the thirty-first day of December of each year unless changed by resolution of
the Board.
ARTICLE VIII.
VOTING OF SHARES IN OTHER CORPORATIONS
SECTION 8.1. Voting of Shares in Other Corporations. Shares in other
corporations which are held by the Corporation may be represented and voted by
the Chairman, President or a Vice President of the Corporation or by proxy or
proxies appointed by one of them. The Board may however, appoint some other
person to vote the shares.
ARTICLE IX.
INDEMNIFICATION AND INSURANCE
SECTION 9.1. Indemnification. (a) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened,
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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, officer,
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, 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.
(b) 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, officer, 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 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 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 or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 9.01(a) and (b) of these By-
laws, 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.
(d) Any indemnification under Section 9.01(a) and (b) of these By-
laws (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, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 9.01(a) and
(b)of these By-laws. Such determination shall be made (i) by the Board by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) 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 (iii) by the stockholders of the
Corporation.
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(e) Expenses (including attorneys' fees) incurred by an 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 officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation pursuant to this Article IX. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, other Sections of this Article IX shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(g) For purposes of this Article IX, 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, 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, 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 IX with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(h) For purposes of this Article IX, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an 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 service by, such director,
officer, employee or agent with respect to any 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 IX.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrator of such a person.
SECTION 9.2. Insurance for Indemnification. The Corporation may 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, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against
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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 Section 145 of the General
Corporation Law.
ARTICLE X.
AMENDMENTS
SECTION 10.1. Amendments. Unless otherwise provided in the Certificate of
Incorporation, any By-law (including these By-laws) may be adopted, amended or
repealed by the vote of the recordholders of a majority of the Shares then
entitled to vote at an election of Directors or by written consent of
Stockholders pursuant to Section 2.09 hereof, or by vote of the Board or by a
written consent of Directors pursuant to Section 3.08 hereof.
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