Attached files
file | filename |
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8-K - FORM 8-K - HollyFrontier Corp | d83301e8vk.htm |
EX-4.1 - EX-4.1 - HollyFrontier Corp | d83301exv4w1.htm |
EX-3.1 - EX-3.1 - HollyFrontier Corp | d83301exv3w1.htm |
EX-4.2 - EX-4.2 - HollyFrontier Corp | d83301exv4w2.htm |
EX-10.2 - EX-10.2 - HollyFrontier Corp | d83301exv10w2.htm |
EX-99.1 - EX-99.1 - HollyFrontier Corp | d83301exv99w1.htm |
EX-10.1 - EX-10.1 - HollyFrontier Corp | d83301exv10w1.htm |
EX-10.5 - EX-10.5 - HollyFrontier Corp | d83301exv10w5.htm |
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
HOLLYFRONTIER CORPORATION
EFFECTIVE AS OF JULY 1, 2011
ARTICLE I
Offices
The principal office of HollyFrontier Corporation (the Corporation) in the State of
Delaware shall be in the City of Wilmington, County of New Castle, and the name of the resident
agent in charge thereof is The Corporation Trust Company.
The Corporation may, in addition to its principal office in the State of Delaware, establish
and maintain an office or offices at such other places as the Board of Directors of the Corporation
(the Board) may from time to time deem necessary or desirable.
ARTICLE II
Stockholders Meetings
Section 1. Place of Meetings. The annual meeting of the stockholders for the election
of directors and any special meetings of stockholders shall be held at such time and place as shall
be stated in the notice of such meeting.
Section 2. Annual Meetings. The annual meeting of the stockholders for the election of
directors and for the transaction of any other business properly presented for action at such
meeting shall be held on the second Thursday in May of each year or on such other day as may be
fixed by resolution of the Board; provided, however, that if the Board deems it
impracticable to hold the meeting on the date originally determined, such annual meeting shall be
held as soon as practicable after such date on a date to be specified in a resolution of the Board.
At an annual meeting, only such business shall be conducted, and only such proposals shall be
acted upon, as shall have been brought before the annual meeting (i) by, or at the direction of,
the Board or (ii) by any stockholder of the Corporation who complies with the notice procedures set
forth in this Section 2 or, with respect to the election of directors, Section 11 of Article III of
these By-Laws. For a proposal to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholders notice must be delivered to, or mailed and received at,
the principal executive offices of the Corporation not less than 120 calendar days nor more than
150 calendar days before the anniversary date of the corporations proxy statement released to
stockholders in connection with the prior years annual meeting. However, if no annual meeting was
held in the previous year, or if the date of the
applicable annual meeting has been changed by more than 30 days from the date contemplated at the time of
the previous years proxy statement, a stockholders notice must be received by the Secretary not
later than 60 days before the date the Corporation commences mailing of its proxy materials in
connection with the applicable annual meeting. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a stockholders
notice as described above. A stockholders notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief description of the
proposal desired to be brought before the annual meeting, including the complete text of any
resolutions intended to be submitted at the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the Corporations
books, of the stockholder proposing such matter and any other stockholders known by such
stockholder to be supporting such proposal, (iii) the class and number of shares of the
Corporations stock which are beneficially owned by the stockholder on the date of such
stockholders notice and by any other stockholders known by such stockholder to be supporting such
proposal on the date of such stockholders notice, and (iv) any financial interest of the
stockholder in such proposal. In addition, a stockholder seeking to submit such proposal at the
meeting shall promptly provide any other information reasonably requested by the Corporation.
Except as otherwise provided by law, at any time following the Corporations receipt of a
proposal, the Chairman of the Board (or other presiding officer at an annual meeting) shall have
the power to determine whether any matter proposed to be brought before the annual meeting was
proposed in accordance with the notice procedures set forth in this Section 2 and if any proposal
is not in compliance with this Section 2, the Chairman of the Board (or such other presiding
officer) may exclude such proposal from the annual meeting.
Notwithstanding the forgoing provisions of this Section 2, a stockholder who seeks to have any
proposal included in the Corporations proxy materials shall comply with the requirements of Rule
14a-8 of Regulation 14A under the Securities Exchange Act of 1934, as amended.
In the event a proposal is presented for action at such annual meeting which, in the opinion
of the ranking executive officer of the Corporation attending such meeting, requires the giving of
prior notice of such business to stockholders, no action shall be taken on such proposal at such
meeting unless and until proof of timely and adequate notice of such proposal shall have been filed
with and accepted by the ranking executive officer of the Corporation attending such meeting.
Section 3. Special Meetings. Special meetings of the stockholders may be called by the
Chief Executive Officer, and shall be called by the Chairman of the Board, the Chief Executive
Officer, the President, a Vice President, the Secretary or an Assistant Secretary, at the request
in writing of a majority of the Board, or of a majority of the Executive Committee, or of
stockholders owning a majority of the outstanding shares having voting power. Such request shall
state the purpose or purposes of the proposed meeting.
Section 4. Notice. Notice of all stockholders meetings stating the time and place,
and, in the case of special meetings, the purpose or purposes for which the meeting is called,
shall be delivered personally or mailed to each stockholder entitled to vote at such meeting not
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less than 30 nor more than 60 days before the meeting of stockholders is to be held, unless
the stockholders meeting is called by the Chairman of the Board, the Chief Executive Officer, the
President, a Vice President, the Secretary or an Assistant Secretary of the Corporation, at the
request in writing of a majority of the Board, in which case such notice shall be delivered not
less than 10 nor more than 60 days before the meeting of stockholders is to be held. If mailed,
notice shall be directed to the stockholder at his last known post office address as the same
appears on the stock records of the Corporation.
Section 5. Proxies. At any meeting of the stockholders, each stockholder entitled to
vote may vote either in person or by proxy, but no proxy shall be voted on after three years from
its date, unless such proxy shall, on its face, name a longer period for which it is to remain in
force. Each proxy either (a) shall be authorized in writing, subscribed by the stockholder or his
duly authorized attorney, but need not be sealed, witnessed or acknowledged, and shall be filed
with the Secretary at or before the meeting, or (b) shall be authorized by means of an electronic
transmission as permitted by law and shall be filed in accordance with the procedure established
for the meeting.
Section 6. Quorum. At any annual or special meeting of stockholders a majority in
interest of the stockholders entitled to vote thereat, present in person or by proxy, shall
constitute a quorum, except as otherwise provided by law, but if at any meeting of the stockholders
there be less than a quorum present, the stockholders present at such meeting may, without further
notice, adjourn the same from time to time until a quorum shall attend, but no business shall be
transacted at any such adjourned meeting except such as might have been lawfully transacted had the
meeting not been adjourned.
Section 7. Voting. Except as otherwise expressly required by statute, the Certificate
of Incorporation or these By-Laws, each stockholder shall at each meeting of the stockholders be
entitled to one vote in person or by proxy for each share of stock of the Corporation entitled to
be voted thereat held by him and registered in his name on the books of the Corporation
(a) on such date as may be fixed pursuant to Article VIII of these By-Laws as the record date
for the determination of stockholders entitled to notice of and to vote at such meeting; or
(b) in the event that no record date shall have been so fixed, on the date of such meeting;
provided, however, that, except where a record date shall have been so fixed, no share of stock of
the Corporation shall be voted at any election of directors which shall have been transferred on
the books of the Corporation within 20 days prior to such election of directors.
The vote for directors and, upon the demand of any stockholder, the vote upon any question
before the meeting shall be by ballot. Except as otherwise provided by law or the Certificate of
Incorporation or these By-Laws, directors shall be elected by a plurality vote of the stockholders
present or represented at the meeting, and each other question properly presented to any meeting of
stockholders shall be decided by a majority of the votes cast on the question entitled to vote
thereon. The date and time of the opening and the closing of the polls for each
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matter upon which the stockholders will vote at any meeting of stockholders shall be announced
at the meeting by the Chairman of the Board (or other presiding officer of the Corporation).
Section 8. List of Stockholders. A complete list of the stockholders entitled to vote
at the ensuing election, arranged in alphabetical order, with the residence of each, and the number
of voting shares held by each, shall be prepared and filed in the office where the election is to
be held at least 10 days before every election, and shall at all times during the usual hours for
business during the said 10 days and during the whole time of said election be open to the
examination of any stockholder.
Section 9. Judges of Election. Whenever a vote at a meeting of stockholders shall be
by ballot, the polls shall be opened and closed, the proxies and ballots shall be received, and all
questions pertaining to the qualification of voters and the validity of proxies and the acceptance
or rejection of votes shall be decided by two Judges of Election. Such Judges of Election shall be
appointed by the Board before or at the meeting, or in default thereof, by the officer presiding at
the meeting, and shall be sworn to the faithful performance of their duties. If any Judge of
Election previously appointed shall fail to attend or refuse or be unable to serve, a substitute
shall be appointed by the presiding officer.
Section 10. Consent Notice. In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a meeting, the Board may
fix a record date, which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which date shall not be more than 60 nor less than 10
days before the date of such meeting. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice to the Secretary of
the Corporation, request the Board to fix a record date. The Board shall promptly, but in all
events within 10 days after the date on which such a request is received, adopt a resolution fixing
the record date. If no record date has been fixed by the Board within 10 days of the date on which
such a request is received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board is required by
applicable law, shall be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or any officer or agent of the
Corporation having custody of the book in which proceedings for stockholder meetings are recorded,
to the attention of the Secretary of the Corporation. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by the Board and prior
action by the Board is required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board adopts a resolution taking such prior action.
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ARTICLE III
Directors
Section 1. Powers. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, the property, business and affairs of the Corporation shall be
managed by the Board.
Section 2. Number and Tenure. The Board shall consist of no less than 3 nor more than
14 members as the Board may determine from time to time by Resolution of the Board. Directors shall
hold office until the next annual election and until their successors shall be duly elected and
qualified. The Board shall keep full and fair records and accounts of its proceedings and
transactions. Directors need not be stockholders.
Section 3. Regular Meetings. The Board shall meet for the election of officers and for
the transaction of any other business as soon as practicable after the annual meeting of
stockholders. Other regular meetings of the Board may be held at such times and places as the Board
may from time to time determine. No notice of any such annual or regular meeting of the Board need
be given.
Section 4. Special Meetings. Special meetings of the Board shall be called by the
Secretary or any Assistant Secretary at the request of the Chairman of the Board, the Chief
Executive Officer, the President or of any two directors. Notice of the time and place of any
special meeting of the Board shall be mailed, postage prepaid, to each director at least 48 hours
before the time at which the meeting is to be held, or shall be sent by confirmed facsimile
transmission or other form of electronic communication, or be delivered personally or by telephone,
at least 24 hours before the time at which such meeting is to be held. Notice of any special
meeting need not be given to any director who shall waive notice thereof. Any meeting of the Board
shall be a legal meeting without notice thereof having been given, if all the directors of the
Corporation then holding office shall be present thereat.
Section 5. Place of Meetings. Meetings of the Board may be held at such places in or
out of the State of Delaware as may be fixed by the Board or designated in the notice of the
meeting, except that the annual meeting of the Board, if held without notice, shall be held at the
principal executive office of the Corporation.
Section 6. Quorum. A majority of the Board, but not less than two directors, shall
constitute a quorum for the transaction of business, but if, at any meeting of the Board, there be
less than a quorum present, a majority of the directors present may, without further notice,
adjourn the same from time to time until a quorum shall attend. A majority of such quorum shall
decide any questions that may come before the meeting.
Section 7. Resignations. A resignation from the Board shall be deemed to take effect
upon its receipt by the Corporation unless otherwise specified therein.
Section 8. Vacancies. Vacancies in the Board created on account of death, resignation,
removal, disqualification or other causes, or resulting from an increase in the authorized number
of directors, shall be filled by a majority of the directors then in office,
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although less than a quorum, and the directors so chosen shall hold office until the next
annual election and until their successors shall be duly elected and qualified or until their
earlier death, resignation or removal; provided, however, that if the remaining
directors shall constitute less than a majority of the whole Board, the Court of Chancery may, upon
application of any stockholder or stockholders holding at least 10% of the total number of shares
of the capital stock of the Corporation at the time outstanding having the right to vote for
directors, summarily order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by Section 211 of the General Corporation Law of the State of
Delaware (the DGCL).
Section 9. Removal. At any meeting of the stockholders called for the purpose any
director may, by vote of stockholders entitled to cast a majority of the votes then entitled to
vote in the election of directors, be removed from office with or without cause.
Section 10. Compensation. Directors shall receive such compensation for their services
as shall be fixed from time to time by resolution of the Board. Nothing in this Section shall be
construed to preclude a director from serving the Corporation in any other capacity and receiving
compensation therefore.
Section 11. Nominees for Director. Nominations by stockholders of persons to be
elected to the Board shall be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholders notice must be delivered to, or mailed and received at,
the principal executive offices of the Corporation (a) with respect to an election to be held at
the annual meeting of the stockholders of the Corporation, not less than 90 days nor more than 120
days prior to the anniversary date of the immediately preceding annual meeting of stockholders of
the Corporation, and (b) with respect to an election to be held at a special meeting of
stockholders of the Corporation for the election of directors, not later than the close of business
on the seventh day following the date on which notice of the date of the special meeting was mailed
to stockholders of the Corporation or public disclosure of the date of the special meeting was
made, whichever first occurs. Such stockholders notice to the Secretary of the Corporation shall
set forth (a) as to each person whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is required to be disclosed
in solicitations of proxies for election of directors, or is otherwise required, pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including such persons
written consent to being named in the proxy statement as a nominee and to serve as a director if
elected), and (b) as to the stockholder giving the notice (i) the name and address, as they appear
on the Corporations books, of such stockholder and (ii) the class and number of shares of voting
stock of the Corporation which are beneficially owned by such stockholder. In the event that a
person is validly designated as a nominee to be elected to the Board in accordance with the
procedures set forth in this Section 11 and thereafter becomes unable or unwilling to stand for
election to the Board, the stockholder who proposed such nominee may designate a substitute
nominee, if such substitute nominee is designated within and in accordance with the time
limitations set forth in this Section 11, upon providing the information specified in clause (a)
above with respect to such substitute nominee. Except as otherwise provided by law, at any time
following the Corporations receipt of a nomination for director of the Corporation by a
stockholder, the Chairman of the Board (or other presiding officer at an annual meeting) shall have
the power to
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determine whether the proposed nomination was made in accordance with the notice procedures
set forth in this Section 11, and if any nomination is not in compliance with this Section 11, the
Chairman of the Board (or such other presiding officer) may refuse to acknowledge the nomination of
any such person at the annual meeting. Notwithstanding the foregoing provisions of this Section
11, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth
in this Section 11.
Section 12. Board Action By Written Consent In Lieu of Meeting. Action required or
permitted by applicable law, the Certificate of Incorporation or these By-Laws to be taken at a
meeting of the Board may be taken without a meeting if the action is taken by all members of the
Board. The action shall be evidenced by one or more written consents describing the action taken,
signed, either manually, in facsimile or electronically, by each director, and included in the
minutes or filed with the corporate records reflecting the action taken. Action taken under this
Section 12 is effective when the last director signs the consent, unless the consent specifies a
different effective date.
Section 13. Chairman of the Board; Vice Chairman of the Board. The Board may
designate from among its members a Chairman of the Board, which person may be an Executive Chairman
of the Board (as described in Article V, Section 2 of these By-Laws), and may also designate a Vice
Chairman of the Board. The Chairman of the Board shall preside at all meetings of stockholders and
of the Board, and shall advise and counsel the officers of the Corporation and shall have and
perform such duties as usually devolve upon his role and such other duties as are prescribed by
these By-Laws and by the Board. The Vice Chairman of the Board shall, in the absence of the
Chairman of the Board, preside at all meetings of stockholders and of the Board, and exercise and
discharge the responsibilities and duties of the Chairman of the Board. He or she shall have and
perform such other duties as may be prescribed or assigned by the Board or the Chairman of the
Board.
ARTICLE IV
Committees
Section 1. Executive Committee. The Board, by resolution adopted by a majority of the
whole Board, may designate not less than three of the directors then in office (at least one of
whom shall be the Chief Executive Officer or the President of the Corporation) to constitute an
Executive Committee. Terms of members of the Executive Committee shall be at the pleasure of the
Board but only while a member remains a director. If the Chairman of the Board is a member of the
Executive Committee, he shall be Chairman of the Committee; otherwise, the Chairman of the
Executive Committee shall be the Chief Executive Officer if he is a member of the Executive
Committee or, if the Chief Executive Officer is not a member of the Executive Committee, the
President shall be the Chairman of the Executive Committee. To the extent permitted by law or
except as otherwise provided by this Section 1 or by resolution of the Board, during the intervals
between meetings of the Board, the Executive Committee shall possess and may exercise all of the
powers of the Board in the management of the business and affairs of the Corporation. An action of
the Executive Committee taken within the scope of its authority shall be an act of the Board. All
action taken by the Executive Committee shall be reported to the
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Board at its regular meeting next succeeding such action, but failure to so render such report
shall not invalidate any such action. Vacancies in the Executive Committee shall be filled by the
Board, but during the temporary absence of a member of the Executive Committee, the remaining
members of the Executive Committee may appoint a member of the Board to act in the place of such
absent member.
Section 2. Meetings and Records of Executive Committee. Subject to the provisions of
these By-Laws, the Executive Committee shall fix its own rules of procedure and shall meet as
provided by such rules or by resolution of the Board, and it shall also meet at the call of the
Chairman of the Board, the Chief Executive Officer or the President of the Corporation or of any
two members of the Committee. Notice of meetings of the Executive Committee may be given orally, by
telephone, or in any other manner that reasonably assures receipt thereof and no minimum advance
notice shall be required. No notice shall be required for any meeting of the Executive Committee in
which a majority of its members participate, action may be taken by the Executive Committee in any
manner permitted for directors actions or meetings under Delaware law, and action taken by a
majority of the members of the Executive Committee shall constitute the action of the Executive
Committee. Two members of the Executive Committee shall constitute a quorum. The Executive
Committee shall keep records of its proceedings and transactions.
Section 3. Other Committees. The Board may by resolution provide for such other
standing or special committees as it deems desirable and discontinue the same at pleasure. Each
such committee shall have such powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board. If provision be made for any such committee, the members thereof shall
be appointed by the Board and shall serve during the pleasure of the Board. Vacancies on such
committees shall be filled by the Board. Section 2 of this Article IV shall also apply to the
meetings of such other committees mutatis mutandis.
ARTICLE V
Officers
Section 1. General. The officers of the Corporation may consist of an Executive
Chairman of the Board, a Chief Executive Officer, a President, a Chief Operating Officer, a Chief
Financial Officer, one or more Executive Vice Presidents, Senior Vice Presidents and/or Vice
Presidents (some of whom may have particular authority and responsibilities as designated in their
titles by the Board), a Secretary, a Controller, a Treasurer and such Assistant Vice Presidents,
Assistant Secretaries, Assistant Treasurers or other subordinate officers as may from time to time
be designated by the Board. One person may hold more than one office, and no officer (other than
an Executive Chairman of the Board) need be a director. These said officers shall have all the
usual powers and shall perform all of the usual duties incident to their respective offices and
shall, in addition, perform such other duties as shall be assigned to them from time to time by the
Board. In its discretion, the Board may leave unfilled any office, except that there shall always
be either a Chief Executive Officer or a President of the Corporation.
Section 2. Executive Chairman. If the Board designates the Chairman of the Board as
the Executive Chairman of the Board, he or she shall be an officer of the Corporation. The
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Executive Chairman of the Board: (i) shall provide advice and counsel to the Chief Executive
Officer, the President and other members of senior management in areas such as corporate and
strategic planning and policy, acquisitions, major capital expenditures and other areas requested
by the Board; (ii) may sign and execute any document, deed, paper, mortgage, bond, stock
certificate, contract or other instrument or obligation in the name and on behalf of the
Corporation, except in cases where the execution thereof shall be expressly delegated by the Board
or by these By-Laws to some other officer or agent of the Corporation or shall be required by law
to be otherwise executed; and (iii) shall, in general, perform all duties as may be prescribed by
these By-Laws or assigned to him or her by the Board from time to time.
Section 3. Chief Executive Officer. Subject to the control of the Board, the Chief
Executive Officer shall be responsible for the general management of the business of the
Corporation and shall have supervisory authority over the general policies and business of the
Corporation, and may sign and execute any document, deed, paper, mortgage, bond, stock certificate,
contract or other instrument or obligation in the name and on behalf of the Corporation, except in
cases where the execution thereof shall be expressly delegated by the Board or by these By-Laws to
some other officer or agent of the Corporation or shall be required by law to be otherwise
executed, and shall exercise such other powers as the Board may from time to time direct. In the
event that the positions of Chairman of the Board and Vice Chairman of the Board are unfilled, the
Chief Executive Officer shall in addition have the authority and responsibilities of the Chairman
of the Board.
Section 4. President. The President shall, subject to the powers of supervision and
control conferred upon the Chief Executive Officer, have all necessary powers to discharge such
responsibility including the powers to sign and execute any document, deed, paper, mortgage, bond,
stock certificate, contract or other instrument or obligation in the name and on behalf of the
Corporation, except in cases where the execution thereof shall be expressly delegated by the Board
or by these By-Laws to some other officer or agent of the Corporation or shall be required by law
to be otherwise executed, and such other powers as the Board may from time to time direct. In the
event that the office of Chief Executive Officer is unfilled, the President shall in addition have
the authority and responsibilities of the Chief Executive Officer as specified in Section 3 of this
Article.
Section 5. Chief Operating Officer. The Chief Operating Officer shall perform such
duties as are customary for a chief operating officer to perform, including the powers to sign and
execute any document, deed, paper, mortgage, bond, stock certificate, contract or other instrument
or obligation in the name and on behalf of the Corporation, except in cases where the execution
thereof shall be expressly delegated by the Board or by these By-Laws to some other officer or
agent of the Corporation or shall be required by law to be otherwise executed, and shall perform
such other duties as from time to time may be assigned to him or her by the Board of Directors, the
Chief Executive Officer or the President.
Section 6. Chief Financial Officer. The Chief Financial Officer shall perform such
duties as are customary for a chief financial officer to perform, including the powers to sign and
execute any document, deed, paper, mortgage, bond, stock certificate, contract or other instrument
or obligation in the name and on behalf of the Corporation, except in cases where the execution
thereof shall be expressly delegated by the Board or by these By-Laws to some other
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officer or agent of the Corporation or shall be required by law to be otherwise executed, and
shall perform such other duties as from time to time may be assigned to him or her by the Board of
Directors, the Chief Executive Officer or the President.
Section 7. Executive and Senior Vice Presidents; Vice Presidents. Each Executive Vice
President, Senior Vice President, or Vice President shall exercise general supervision and have
executive control of such departments of the Corporations business, or perform such other
executive duties as shall from time to time be assigned to him or her by the Board, the Chief
Executive Officer or by the President. The Board shall have the power to designate particular
areas of authority and responsibility of an Executive Vice President, Senior Vice President or Vice
President and to indicate such designation in such officers title. In case of the absence or
disability of the Chief Executive Officer and the President, each Executive Vice President and
Senior Vice President (without regard to whether his or her title specifies particular areas of
authority and responsibility) and each Vice President whose title does not designate specific areas
of authority and responsibility shall be vested with all the powers of the Chief Executive Officer
and the President in respect of the powers to sign and execute any document, deed, paper, mortgage,
bond, stock certificate, contract or other instrument or obligation in the name and on behalf of
the Corporation, except in cases where the execution thereof shall be expressly delegated by the
Board or by these By-Laws to some other officer or agent of the Corporation or shall be required by
law to be otherwise executed. In the case of each Vice President whose title indicates one or more
specific areas of authority and responsibility, such Vice Presidents authority and
responsibilities shall be limited to the area or areas designated in such Vice Presidents title as
specified by the Board.
Section 8. Secretary. The Secretary shall keep the minutes of the meetings of the
stockholders and of the Board and of the Executive Committee, in books provided for the purpose; he
or she shall see that all notices are duly given in accordance with the provisions of these
By-Laws, or as required by law; he or she shall be custodian of the records and of the corporate
seals of the Corporation; he or she shall see that the corporate seal is affixed to all documents,
the execution of which, on behalf of the Corporation, under its seal, is duly authorized, and when
so affixed may attest the same; and, in general, he or she shall perform all duties incident to the
office of a secretary of a corporation, and such other duties as from time to time may be assigned
by the Board. The Secretary may sign, with the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President, certificates of the stock of the Corporation. The Secretary
shall be sworn to the faithful discharge of his duties.
Section 9. Controller. The Controller shall report directly to the Chief Financial
Officer, and shall have charge of the supervision of the accounting system of the Corporation,
including the preparation and filing of all reports required by law to be made to any public
authorities and officials. He or she shall perform such other duties as are usually associated
with his office or as shall be assigned to him by the Board, the President or the Chief Financial
Officer.
Section 10. Treasurer. The Treasurer shall report directly to the Chief Financial
Officer, and shall have charge of and be responsible for all funds, securities, receipts and
disbursements of the Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies or other
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depositories as shall, from time to time, be selected by the Board; he shall render to the
Chief Executive Officer, the Chief Financial Officer and to the Board, whenever requested, an
account of the financial condition of the Corporation; he or she may sign, with the Chief Executive
Officer, the President, the Chief Financial Officer or a Vice President, certificates of stock of
the Corporation; and, in general, shall perform all the duties incident to the office of a
treasurer of a corporation, and such other duties as may be assigned by the Board.
Section 11. Assistant Officers. Each assistant officer shall perform such duties and
have such responsibilities as may be delegated to him or her by the superior officer to whom he is
made responsible, by designation of the Chief Executive Officer, or as the Board may prescribe.
The Board may, from time to time, authorize any executive officer to appoint and remove assistant
officers and prescribe the powers and duties thereof.
Section 12. Officers Holding Two or More Offices. Any person may hold two or more
offices except that the person holding the office of Secretary may not also hold the office of
Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer or President and no
officer shall execute, acknowledge or verify any instrument in more than one capacity, if such
instrument be required by law, by the Certificate of Incorporation, or by these By-Laws, to be
executed, acknowledged or verified by any two or more officers.
Section 13. Voting of Other Stock. Unless specifically directed otherwise by
resolution of the Board, each of the Chief Executive Officer and the President shall have full
power and authority on behalf of the Corporation to vote the stock of any other corporation owned
or held by the Corporation at any meeting of the stockholders of such other corporation, or to
execute the written consent of this Corporation to any action that may be taken by the stockholders
of such other corporation without a meeting.
Section 14. Compensation. The Board shall have power to fix the compensation of all
officers of the Corporation. It may authorize any officer, upon whom the power of appointing
subordinate officers may have been conferred, to fix the compensation of such subordinate officers.
Section 15. Removal. Any officer of the Corporation may be removed, with or without
cause, by the Board at a meeting called for that purpose, or (except in case of an officer elected
by the Board) by an officer upon whom such power of removal may have been conferred.
Section 16. Indemnification. The Corporation shall indemnify any person (including
the heirs, executors or administrators of such a person) who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or proceeding, by reason of
the fact that he or she 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, in accordance with and
to the fullest extent permitted by the DGCL as same may be amended from time to time, including the
advancement of expenses incurred by the indemnified person in defending any such threatened,
pending or completed action, suit or proceeding. To the extent the present or former spouse(s) of
any party indemnified hereunder is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding solely by virtue of his or her marital
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relationship to such indemnified party, such spouse shall be indemnified hereunder to the
fullest extent permitted by the DGCL as same may be amended from time to time. Except as the Board
of the Corporation in its discretion (but subject to applicable law) may otherwise determine, such
indemnification shall be afforded only if such person within 5 business days after his becoming
aware of the institution of such action, suit or proceeding, shall have notified in writing by
registered or certified mail, the Chief Executive Officer, President or Secretary of the
Corporation of the institution of such action, suit or proceeding, and shall have furnished such
Chief Executive Officer, President or Secretary with true copies of all papers served upon or
otherwise received by such person relating to such action, suit or proceeding, and shall make
available to officers or counsel of the Corporation all information necessary to keep the
Corporation currently advised as to the status of such action, suit, or proceeding, and permit the
Corporation, at its option and expense, at any time during the course of such action, suit or
proceeding, through counsel of the Corporations choosing, to participate in or direct the defense
thereof in good faith, and in case of any proposed settlement of any action, suit or proceeding the
defense of which is not directed by the Corporation, to submit the proposed terms and conditions
thereof to the Board of the Corporation for their approval, failing which no indemnification
hereunder shall be afforded for any such settlement. Such indemnification as hereinabove provided
shall not be deemed exclusive of any other rights to which those indemnified may be entitled under
any agreement, vote of stockholders or disinterested directors, or otherwise.
ARTICLE VI
Fiscal Year
Effective beginning with the fiscal year ending December 31, 2003, the fiscal year of the
Corporation shall end on the thirty-first day of December in each year, or on such other day as may
be fixed from time to time by the Board.
ARTICLE VII
Seal
The Board shall provide a suitable seal, having inscribed thereon the name of the Corporation;
the year of its incorporation and such other appropriate legend as may from time to time be
determined by the Board. If deemed advisable by the Board, a duplicate seal or duplicate seals may
be provided and kept for the necessary purposes of the Corporation.
ARTICLE VIII
Stock
Section 1. Certificates. Certificates of stock shall be issued in such form as may be
approved by the Board and shall be signed by the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, and sealed with the seal of the Corporation; provided,
however, that where any such certificate is signed by a Transfer Agent and by a Registrar,
the signature of any such Chief Executive Officer, President, Chief Financial Officer, Vice
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President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary and the seal of
the Corporation upon such certificates may be facsimiles engraved or printed thereon. The shares
of the Corporations capital stock may be certificated or uncertificated in accordance with the
laws of the State of Delaware.
Section 2. Transfer Agents and Registrars. The Board shall have power and authority to
make all such rules and regulations as it may deem expedient concerning the issue, registration,
and transfer of certificates of stock, and may appoint Transfer Agents and Registrars thereof.
Section 3. Closing of Books. The Board shall have power to close the stock transfer
books of the Corporation for a period not exceeding 60 days preceding the date of any meeting of
stockholders or the date for payment of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock shall go into effect; provided,
however, that in lieu of closing the stock transfer books as aforesaid, the Board may fix in
advance a date, not exceeding 60 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of capital stock, and in
such case only such stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend,
or to receive such allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid.
Section 4. Lost, Mutilated, or Destroyed Certificates. In case any certificate of
stock is lost, mutilated or destroyed, the Board may authorize the issue of a new certificate in
place thereof upon such terms and conditions, as it may deem advisable.
ARTICLE IX
Signatures
Section 1. Checks. All checks, drafts, notes or other obligations of the Corporation
shall be signed by the Chief Executive Officer, the President, the Chief Financial Officer and/or a
Vice President, and/or the Treasurer, Assistant Treasurer, Controller or by any person or persons
thereunto authorized by the Board or the Executive Committee.
Section 2. Endorsements. All endorsements, assignments, transfers, stock powers or
other instruments of transfer of securities standing in the name of the Corporation shall be
executed for and in the name of the Corporation by the Chief Executive Officer, the President or a
Vice President, and the Secretary or an Assistant Secretary, or by any person or persons thereunto
authorized by the Board or the Executive Committee.
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Section 3. Proxies. Except as otherwise authorized or directed from time to time by
the Board or the Executive Committee, the Chief Executive Officer of the Corporation, or in his
absence or disability, the President or an Executive or Senior Vice President of the Corporation,
may authorize from time to time the signature and issuance of proxies to vote upon, and/or of
consents or waivers in respect of, shares of stock of other corporations standing in the name of
the Corporation. All such proxies, consents or waivers shall be signed in the name of the
Corporation by the Chief Executive Officer, the President or an Executive or Senior Vice President
and the Secretary or an Assistant Secretary.
ARTICLE X
Notice of Meetings
Whenever by law or by the Certificate of Incorporation or by these By-Laws notice is required
to be given to any stockholder, such notice shall be delivered by first-class mail, postage
prepaid, and the time when the same shall be mailed shall be deemed to be the time of the giving of
such notice.
ARTICLE XI
Amendments
These By-Laws may be amended or repealed or new By-Laws may be adopted only by the affirmative
vote of the holders of not less than 67% of the stock issued and outstanding and entitled to vote
thereon at any regular or special meeting of the stockholders, if notice of the proposed alteration
or amendment be contained in the notice of meeting, or by the affirmative vote of a majority of the
Board.
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