EXHIBIT 3.2
BY-LAWS
OF
THE COCA-COLA COMPANY
AS AMENDED AND RESTATED THROUGH FEBRUARY 17, 2000
ARTICLE I
SHAREHOLDERS:
Section 1. PLACE, DATE AND TIME OF HOLDING ANNUAL
MEETINGS. Annual meetings of shareholders shall be held at such
place, date and time as shall be designated from time to time by
the Board of Directors. In the absence of a resolution adopted
by the Board of Directors establishing such place, date and time,
the annual meeting shall be held at 1209 Orange Street,
Wilmington, Delaware, on the third Wednesday in April of each
year at 9:00 A.M. (local time).
Section 2. VOTING. Each outstanding share of common
stock of the Company is entitled to one vote on each matter
submitted to a vote. Directors shall be elected by plurality
votes cast in the election for such directors. All other action
shall be authorized by a majority of the votes cast unless a
greater vote is required by the laws of Delaware. A shareholder
may vote in person or by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance
with the procedures established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the
writing or transmission created pursuant to this section may be
substituted or used in lieu of the original writing or the
transmission that could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
Section 3. QUORUM. The holders of a majority of the
issued and outstanding shares of the common stock of the Company,
present in person or represented by proxy, shall constitute a
quorum at all meetings of shareholders.
Section 4. ADJOURNMENT OF MEETINGS. In the absence of a
quorum or for any other reason, the chairman of the meeting may
adjourn the meeting from time to time. If the adjournment is not
for more than thirty days, the adjourned meeting may be held
without notice other than an announcement at the meeting. If the
adjournment is for more than thirty days, or if a new record date
is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to
vote at such
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meeting. At any such adjourned meeting at which a quorum is present,
any business may be transacted which might have been transacted at the
meeting originally called.
Section 5. SPECIAL MEETINGS. Special meetings of the shareholders
for any purpose or purposes may be called by the Board of Directors, the
Chairman of the Board of Directors or the President. Special meetings
shall be held at the place, date and time fixed by the Secretary.
Section 6. NOTICE OF SHAREHOLDERS MEETING. Written notice, stating
the place, date, hour and purpose of the annual or special meeting shall
be given by the Secretary not less than ten nor more than sixty days before
the date of the meeting to each shareholder entitled to vote at such
meeting.
Section 7. ORGANIZATION. The Chairman of the Board of Directors shall
preside at all meetings of shareholders. In the absence of, or in case of a
vacancy in the office of, the Chairman of the Board of Directors, the
President, or in his absence or in the event that the Board of Directors has
not selected a President, any Senior Executive Vice President, Executive Vice
President, Senior Vice President or Vice President in order of seniority as
specified in this sentence, and, within each classification of office in
order of seniority in time in that office, shall preside. The Secretary of
the Company shall act as secretary at all meetings of the shareholders and
in the Secretary's absence, the presiding officer may appoint a secretary.
Section 8. INSPECTORS OF ELECTION. All votes by ballot at any meeting
of shareholders shall be conducted by such number of inspectors of election
as are appointed for that purpose by either the Board of Directors or by the
chairman of the meeting. The inspectors of election shall decide upon the
qualifications of voters, count the votes and declare the results.
Section 9. RECORD DATE. The Board of Directors, in order to determine
the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, shall fix
in advance a record date which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to
any other action and in such case only such shareholders as shall be
shareholders of record on the date so fixed, shall be entitled to such notice
of or to vote at such meeting or any adjournment thereof, or entitled to
express consent to such corporate action in writing without a meeting, or
be entitled to receive payment of any such dividend or other distribution or
allotment of any rights or be entitled to exercise any such rights in respect
of stock or to take any such other lawful action, as the case may be,
notwithstanding any transfer of any stock on the books of the Company after
any such record date fixed as aforesaid.
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Section 10. NOTICE OF SHAREHOLDER PROPOSALS. A proposal for action to
be presented by any shareholder at an annual or special meeting of
shareholders shall be out-of-order and shall not be acted upon at such
meeting unless such proposal was specifically described in the Company's
notice to all shareholders of the meeting and the matters to be acted upon
thereat or unless such proposal shall have been submitted in writing to the
Chairman of the Board of Directors of the Company and received at the
principal executive offices of the Company at least sixty (60) days prior to
the date of such annual or special meeting, by the shareholder who intends to
present such proposal, and such proposal is, under law, an appropriate
subject of shareholder action.
ARTICLE II
DIRECTORS:
Section 1. NUMBER AND TERM AND CLASSES OF DIRECTORS. The whole Board
of Directors shall consist of not less than ten (10) nor more than twenty
(20) members, the exact number to be set from time to time by the Board of
Directors. No decrease in the number of directors shall shorten the term of
any incumbent director. In absence of the Board of Directors setting the
number of directors, the number shall be 20. The Board of Directors shall
be divided into three classes of as nearly equal size as practicable. The
term of office of the members of each class shall expire at the third annual
meeting of shareholders following the election of such members, and at each
annual meeting of shareholders, directors shall be chosen for a term of
three years to succeed those whose terms expire; provided, whenever classes
are or, after the next annual meeting of shareholders, will be uneven, the
shareholders, for the sole purpose of making the number of members in such
class as equal as practicable, may elect one or more members of such class
for less than 3 years.
Section 2. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times as the Board of Directors may
determine from time to time.
Section 3. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, the
Secretary or by a majority of the directors by written request to the
Secretary.
Section 4. NOTICE OF MEETINGS. The Secretary shall give notice of
all meetings of the Board of Directors by mailing the notice at least three
days before each meeting or by telegraphing or telephoning the directors not
later than one day before the meeting. The notice shall state the time,
date and place of the meeting, which shall be determined by the Chairman of
the Board of Directors, or, in absence of the Chairman, by the Secretary of
the Company, unless otherwise determined by the Board of Directors.
Section 5. QUORUM AND VOTING. A majority of the directors holding
office shall constitute a quorum for the transaction of business. Except
as otherwise specifically required by Delaware law or by the Certificate of
Incorporation of the Company or by
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these By-Laws, any action required to be taken shall be authorized by a
majority of the directors present at any meeting at which a quorum is present.
Section 6. GENERAL POWERS OF DIRECTORS. The business and affairs of
the Company shall be managed under the direction of the Board of Directors.
Section 7. CHAIRMAN. At all meetings of the Board of Directors, the
Chairman of the Board of Directors shall preside and in the absence of, or in
the case of a vacancy in the office of, the Chairman of the Board of
Directors, a chairman selected by the Chairman of the Board of Directors or,
if he fails to do so, by the directors, shall preside.
Section 8. COMPENSATION OF DIRECTORS. Directors and members of any
committee of the Board of Directors shall be entitled to such reasonable
compensation and fees for their services as shall be fixed from time to time
by resolution of the Board of Directors and shall also be entitled to
reimbursement for any reasonable expenses incurred in attending meetings of
the Board of Directors and any committee thereof, except that a Director who
is an officer or employee of the Company shall receive no compensation or
fees for serving as a Director or a committee member.
Section 9. QUALIFICATION OF DIRECTORS. Each person who shall attain
the age of 74 shall not thereafter be eligible for nomination or renomination
as a member of the Board of Directors. Any director who was elected or
reelected because he or she was an officer of the Company at the time of that
election or the most recent reelection shall resign as a member of the Board
of Directors simultaneously when he or she ceases to be an officer of the
Company.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS:
Section 1. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of
Directors shall designate an Executive Committee, a Finance Committee, an
Audit Committee, a Compensation Committee, a Committee on Directors and a
Public Issues Review Committee, each of which shall have and may exercise
the powers and authority of the Board of Directors to the extent hereinafter
provided. The Board of Directors may designate one or more additional
committees of the Board of Directors with such powers as shall be specified
in the resolution of the Board of Directors. Each committee shall consist
of such number of directors as shall be determined from time to time by
resolution of the Board of Directors.
Each committee shall keep regular minutes of its meetings. All action
taken by a committee shall be reported to the Board of Directors at its
meeting next succeeding such
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action and shall be subject to approval and revision by the Board, provided
that no legal rights of third parties shall be affected by such revisions.
The Chairman of the Board shall have the power and authority of a
committee of the Board of Directors for purposes of taking any action which
the Chairman of the Board is authorized to take under the provisions of this
Article.
Section 2. ELECTION OF COMMITTEE MEMBERS. The members of each
committee shall be elected by the Board of Directors and shall serve until
the first meeting of the Board of Directors after the annual meeting of
shareholders and until their successors are elected and qualified or until
the members' earlier resignation or removal. The Board of Directors may
designate the Chairman and Vice Chairman of each committee. Vacancies may
be filled by the Board of Directors at any meeting.
The Chairman of the Board may designate one or more directors to serve
as an alternate member or members at any committee meeting to replace any
absent or disqualified member, such alternate or alternates to serve for
that committee meeting only, and the Chairman of the Board may designate a
committee member as acting chairman of that committee, in the absence of
the elected committee chairman, to serve for that committee meeting only.
Section 3. PROCEDURE/QUORUM/NOTICE. The Committee Chairman, Vice
Chairman or a majority of any committee may call a meeting of that committee.
A quorum of any committee shall consist of a majority of its members unless
otherwise provided by resolution of the Board of Directors. The majority
vote of a quorum shall be required for the transaction of business. The
secretary of the committee or the chairman of the committee shall give notice
of all meetings of the committee by mailing the notice to the members of the
committee at least three days before each meeting or by telegraphing or
telephoning the members not later than one day before the meeting. The
notice shall state the time, date and place of the meeting. Each committee
shall fix its other rules of procedure.
Section 4. EXECUTIVE COMMITTEE. During the interval between meetings
of the Board of Directors, the Executive Committee shall have and may
exercise the powers of the Board of Directors, to act upon any matters
which, in the opinion of the Chairman of the Board, should not be postponed
until the next previously scheduled meeting of the Board of Directors; but,
to the extent prohibited by law, shall not have the power or authority of
the Board of Directors in reference to (1) approving or adopting, or
recommending to the shareholders, any action or matter expressly required
by the Delaware General Corporation Law to be submitted to shareholders for
approval or (2) adopting, amending or repealing any By-Law of the Company.
Section 5. FINANCE COMMITTEE. The Finance Committee shall periodically
formulate and recommend for approval to the Board of Directors the financial
policies of the Company, including management of the financial affairs of the
Company and its
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accounting policies. The Finance Committee shall have prepared for approval
by the Board of Directors annual budgets and such financial estimates as it
deems proper; shall have oversight of the budget and of all the financial
operations of the Company and from time to time shall report to the Board of
Directors on the financial condition of the Company. All capital
expenditures of the Company shall be reviewed by the Finance Committee and
recommended for approval to the Board of Directors. The Finance Committee
may authorize another committee of the Board of Directors or one or more of
the officers of the Company to approve borrowings, loans, capital
expenditures and guarantees up to such specified amounts or upon such
conditions as the Finance Committee may establish, subject to the approval
of the Board of Directors; and to open bank accounts and designate those
persons authorized to execute checks, notes, drafts and other orders for
payment of money on behalf of the Company.
Section 6. AUDIT COMMITTEE. The Audit Committee shall have the power
to recommend to the Board of Directors the selection and engagement of
independent accountants to audit the books and accounts of the Company and
the discharge of the independent accountants. The Audit Committee shall
review the scope of the audits as recommended by the independent accountants,
the scope of the internal auditing procedures of the Company and the system
of internal accounting controls and shall review the reports to the Audit
Committee of the independent accountants and the internal auditors.
Section 7. COMPENSATION COMMITTEE. The Compensation Committee shall
have the powers and authorities vested in it by the incentive, stock option
and similar plans of the Company. The Compensation Committee shall have the
power to approve, disapprove, modify or amend all plans designed and intended
to provide compensation primarily for officers of the Company. There may be
one or more subcommittees of the Compensation Committee which shall have all
of the power and authority of the Compensation Committee to act on those
matters as to which there is any question concerning the propriety of action
by the Compensation Committee in the specific case because of any law,
rule or regulation relating to the status of its members. The members of
each such subcommittee shall be designated by the Board of Directors, the
Compensation Committee or by the Chairman of the Board and may include
directors who are not members of the Compensation Committee.
Section 8. COMMITTEE ON DIRECTORS. The Committee on Directors shall
have the power to recommend candidates for election to the Board of Directors
and shall consider nominees for directorships submitted by shareholders. The
Committee on Directors shall consider issues involving potential conflicts of
interest of directors and committee members and recommend and review all
matters relating to fees and retainers paid to directors, committee members
and committee chairmen.
Section 9. PUBLIC ISSUES REVIEW COMMITTEE. The Public Issues Review
Committee shall have the power to review Company policy and practice relating
to
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significant public issues of concern to the shareholders, the Company, the
business community and the general public. The Committee may also review
management's position on shareholder proposals involving issues of public
interest to be presented at annual or special meetings of shareholders.
ARTICLE IV
NOTICE AND WAIVER OF NOTICE:
Section 1. NOTICE. Any notice required to be given to shareholders or
directors under these By-Laws, the Certificate of Incorporation or by law may
be given by mailing the same, addressed to the person entitled thereto, at
such person's last known post office address and such notice shall be deemed
to be given at the time of such mailing.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under these By-Laws, the Certificate of Incorporation or by law, a
waiver thereof, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of any regular or
special meeting of the shareholders, directors or a committee of directors
need be specified in any written waiver of notice.
ARTICLE V
OFFICERS:
Section 1. OFFICERS OF THE COMPANY. The officers of the Company shall
be selected by the Board of Directors and shall be a Chairman of the Board of
Directors, one or more Vice Presidents, a Secretary and a Treasurer. The
Board of Directors may elect a Vice Chairman, President and a Controller and
one or more of the following: Senior Executive Vice President, Executive
Vice President, Senior Vice President, Assistant Vice President, Assistant
Secretary, Associate Treasurer, Assistant Treasurer, Associate Controller and
Assistant Controller. Two or more offices may be held by the same person.
The Company may have a General Counsel who shall be appointed by the Board of
Directors and shall have general supervision of all matters of a legal nature
concerning the Company, unless the Board of Directors has also appointed a
General Tax Counsel, in which event the General Tax Counsel shall have
general supervision of all tax matters of a legal nature concerning the
Company.
The Company may have a Chief Financial Officer who shall be appointed by
the Board of Directors and shall have general supervision over the financial
affairs of the
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Company. The Company may also have a Chief of Internal Audits who shall be
appointed by the Board of Directors.
Section 2. ELECTION OF OFFICERS. At the first meeting of the Board of
Directors after each annual meeting of shareholders, the Board of Directors
shall elect the officers. From time to time the Board of Directors may elect
other officers.
Section 3. TENURE OF OFFICE; REMOVAL. Each officer shall hold office
until the first meeting of the Board of Directors after the annual meeting of
shareholders following the officer's election and until the officer's
successor is elected and qualified or until the officer's earlier resignation
or removal. Each officer shall be subject to removal at any time, with or
without cause, by the affirmative vote of a majority of the entire Board of
Directors.
Section 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors shall be the Chief Executive Officer of the Company and
subject to the overall direction and supervision of the Board of Directors
and Committees thereof shall be in general charge of the affairs of the
Company; and shall consult and advise with the Board of Directors and
committees thereof on the business and the affairs of the Company. The
Chairman of the Board of Directors shall have the power to make and execute
contracts on behalf of the Company and to delegate such power to others.
Section 5. PRESIDENT. The Board of Directors may select a President
who shall have such powers and perform such duties as may be assigned by the
Board of Directors or by the Chairman of the Board of Directors. In the
absence or disability of the President his or her duties shall be performed
by such Vice Presidents as the Chairman of the Board of Directors or the
Board of Directors may designate. The President shall also have the
power to make and execute contracts on the Company's behalf and to delegate
such power to others.
Section 6. VICE PRESIDENTS. Each Senior Executive Vice President,
Executive Vice President, Senior Vice President and Vice President shall
have such powers and perform such duties as may be assigned to the Officer
by the Board of Directors or by the Chairman of the Board of Directors or
the President.
Section 7. SECRETARY. The Secretary shall keep minutes of all
meetings of the shareholders and of the Board of Directors, and shall keep,
or cause to be kept, minutes of all meetings of Committees of the Board of
Directors, except where such responsibility is otherwise fixed by the Board
of Directors. The Secretary shall issue all notices for meetings of the
shareholders and Board of Directors and shall have charge of and keep the
seal of the Company and shall affix the seal attested by the Secretary's
signature to such instruments as may properly require same. The Secretary
shall cause to be kept such books and records as the Board of Directors,
the Chairman of the Board of Directors or the President may require; and
shall cause to be prepared, recorded, transferred, issued, sealed and
cancelled certificates of stock as required by the transactions of the
Company
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and its shareholders. The Secretary shall attend to such correspondence and
such other duties as may be incident to the office of the Secretary or
assigned by the Board of Directors, the Chairman of the Board of Directors,
or the President.
In the absence of the Secretary, an Assistant Secretary is authorized
to assume the duties herein imposed upon the Secretary.
Section 8. TREASURER. The Treasurer shall perform all duties and acts
incident to the position of Treasurer, shall have custody of the Company
funds and securities, and shall deposit all money and other valuable effects
in the name and to the credit of the Company in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the
funds of the Company as may be authorized, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, whenever required,
an account of all the transactions of the Treasurer and of the financial
condition of the Company.
The Treasurer shall vote all of the stock owned by the Company in
any corporation and may delegate this power to others. The Treasurer shall
perform such other duties as may be assigned to the Treasurer and shall
report to the Chief Financial Officer or, in the absence of the Chief
Financial Officer, to the Chairman of the Board of Directors. In the
absence of the Treasurer, an Assistant Treasurer is authorized to assume
the duties herein imposed upon the Treasurer.
Section 9. CONTROLLER. The Board of Directors may select a
Controller who shall keep or cause to be kept in the books of the Company
provided for that purpose a true account of all transactions and of the
assets and liabilities of the Company. The Controller shall prepare and
submit to the Chief Financial Officer or, in the absence of the Chief
Financial Officer to the Chairman of the Board of Directors, such financial
statements and schedules as may be required to keep the Chief Financial
Officer and the Chairman of the Board of Directors currently informed of
the operations and financial condition of the Company, and perform such
other duties as may be assigned by the Chief Financial Officer or the
Chairman of the Board.
In the absence of the Controller, an Assistant Controller is
authorized to assume the duties herein imposed upon the Controller.
Section 10. CHIEF OF INTERNAL AUDITS. The Board of Directors may
select a Chief of Internal Audits, who shall cause to be performed, and
have general supervision over, auditing activities of the financial
transactions of the Company, including the coordination of such auditing
activities with the independent accountants of the Company and who shall
perform such other duties as may be assigned to him from time to time. The
Chief of Internal Audits shall report to the Chief Financial Officer or, in
the absence of the Chief Financial Officer, to the Chairman of the Board of
Directors. From time to time at the request of the Audit Committee, the
Chief of Internal Audits shall inform that Committee of the auditing
activities of the Company.
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Section 11. ASSISTANT VICE PRESIDENTS. The Company may have
assistant vice presidents who shall be appointed by a committee whose
membership shall include one or more executive officers of the Company
(the "Committee"). Each such assistant vice president shall have such
powers and shall perform such duties as may be assigned from time to time
by the Committee, the Chairman of the Board of Directors, the President or
any Vice President, and which are not inconsistent with the powers and
duties granted and assigned by these By-Laws or the Board of Directors.
Assistant vice presidents appointed by the Committee shall be subject to
removal at any time, with or without cause, by the Committee. Annually
the Committee shall report to the Board of Directors who it has appointed
to serve as assistant vice presidents and their respective responsibilities.
ARTICLE VI
RESIGNATIONS: FILLING OF VACANCIES:
Section 1. RESIGNATIONS. Any director, member of a committee, or
officer may resign at any time. Such resignation shall be made in writing
and shall take effect at the time specified therein, and, if no time be
specified, at the time of its receipt by the Chairman of the Board of
Directors or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
Section 2. FILLING OF VACANCIES. If the office of any director
becomes vacant, the directors in office, although less than a quorum, or,
if the number of directors is increased, the directors in office, may elect
any qualified person to fill such vacancy. In the case of a vacancy in the
office of a director caused by an increase in the number of directors, the
person so elected shall hold office until the next annual meeting of
shareholders, or until his successor shall be elected and qualified. In the
case of a vacancy in the office of a director resulting otherwise than from
an increase in the number of directors, the person so elected to fill such
vacancy shall hold office for the unexpired term of the director whose
office became vacant. If the office of any officer becomes vacant, the
Chairman of the Board of Directors may appoint any qualified person to fill
such vacancy temporarily until the Board of Directors elects any qualified
person for the unexpired portion of the term. Such person shall hold office
for the unexpired term and until the officer's successor shall be duly
elected and qualified or until the officer's earlier resignation or removal.
ARTICLE VII
INDEMNIFICATION:
Section 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS; INSURANCE. The
Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal,
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administrative or investigative (other than an action by or in the right of
the Company) by reason of the fact that he is or was a director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Company 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 interest of the Company, 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 interest of the Company, and
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
The Company 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 Company 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 Company, or is or was serving at the request of the Company, 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 Company 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 Company unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
To the extent that a director, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in the first two paragraphs of this Section 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.
Any indemnification under the first two paragraphs of this Section
(unless ordered by a court) shall be made by the Company 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
the applicable standard of conduct set forth in the first two paragraphs of
this Section has been met. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who were
not
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parties to such action, suit or proceedings, or (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
shareholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Company as authorized by this Section.
The indemnification and advancement of expenses provided by or granted
pursuant to this Section shall not be deemed exclusive of any other rights
to which those indemnified or those who receive advances may be entitled
under any By-Law, agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
The Company shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Company would have the power to indemnify him
against such liability under the provisions of this Section.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this section 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
administrators of such a person.
ARTICLE VIII
CAPITAL STOCK:
Section 1. FORM AND EXECUTION OF CERTIFICATES. The certificates of
shares of the capital stock of the Company shall be in such form as shall be
approved by the Board of Directors. The certificates shall be signed by the
Chairman of the Board of Directors or the President, or a Vice President, and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer. Each certificate of stock shall certify the number of shares
owned by the shareholder in the Company.
A facsimile of the seal of the Company may be used in connection with
the certificates of stock of the Company, and facsimile signatures of the
officers named in this Section may be used in connection with said
certificates. In the event any officer
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whose facsimile signature has been placed upon a certificate shall cease to
be such officer before the certificate is issued, the certificate may be
issued with the same effect as if such person was an officer at the date of
issue.
Section 2. RECORD OWNERSHIPS. All certificates shall be numbered
appropriately and the names of the owners, the number of shares and the date
of issue shall be entered in the books of the Company. The Company shall be
entitled to treat the holder of record of any share of stock as the holder
in fact thereof and accordingly shall not be bound to recognize any equitable
or other claim to or interest in any share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
required by the laws of Delaware.
Section 3. TRANSFER OF SHARES. Upon surrender to the Company or to a
transfer agent of the Company of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the Company, if it is satisfied that all
provisions of law regarding transfers of shares have been duly complied with,
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 4. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES. Any person
claiming a stock certificate in lieu of one lost, stolen or destroyed shall
give the Company an affidavit as to such person's ownership of the
certificate and of the facts which go to prove that it was lost, stolen or
destroyed. The person shall also, if required by the Board of Directors,
give the Company a bond, sufficient to indemnify the Company against any
claims that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Any Vice President or the Secretary or any Assistant Secretary of the Company
is authorized to issue such duplicate certificates or to authorize any of the
transfer agents and registrars to issue and register such duplicate
certificates.
Section 5. REGULATIONS. The Board of Directors from time to time may
make such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of shares.
Section 6. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint such transfer agents and registrars of transfers as may be deemed
necessary, and may require all stock certificates to bear the signature of
either or both.
ARTICLE IX
SEAL:
Section 1. SEAL. The Board of Directors shall provide a suitable seal
containing the name of the Company, the year of its creation, and the words,
"CORPORATE SEAL, DELAWARE," or other appropriate words. The Secretary shall
have custody of the seal.
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ARTICLE X
FISCAL YEAR:
Section 1. FISCAL YEAR. The fiscal year of the Company shall be the
calendar year.
ARTICLE XI
AMENDMENTS:
Section 1. DIRECTORS MAY AMEND BY-LAWS. The Board of Directors shall
have the power to make, amend and repeal the By-Laws of the Company at any
regular or special meeting of the Board of Directors.
Section 2. BY-LAWS SUBJECT TO AMENDMENT BY SHAREHOLDERS. All By-Laws
shall be subject to amendment, alteration, or repeal by the shareholders
entitled to vote at any annual meeting or at any special meeting.
ARTICLE XII
EMERGENCY BY-LAWS:
Section 1. EMERGENCY BY-LAWS. This Article XII shall be operative
during any emergency resulting from an attack on the United States or on a
locality in which the Company conducts its business or customarily holds
meetings of its Board of Directors or its stockholders, or during any nuclear
or atomic disaster or during the existence of any catastrophe or other
similar emergency condition, as a result of which a quorum of the Board
of Directors or the Executive Committee thereof cannot be readily convened
(an "emergency"), notwithstanding any different or conflicting provision in
the preceding Articles of these By-Laws or in the Certificate of Incorporation
of the Company. To the extent not inconsistent with the provisions of this
Article, the By-Laws provided in the preceding Articles and the provisions of
the Certificate of Incorporation of the Company shall remain in effect during
such emergency, and upon termination of such emergency, the provisions of
this Article XII shall cease to be operative.
Section 2. MEETINGS. During any emergency, a meeting of the Board of
Directors, or any committee thereof, may be called by any officer or director
of the Company. Notice of the time and place of the meeting shall be given
by any available means of communication by the person calling the meeting to
such of the directors and/or Designated Officers, as defined in Section 3
hereof, as it may be feasible to reach. Such notice shall be given at such
time in advance of the meeting as, in the judgment of the person calling the
meeting, circumstances permit.
Section 3. QUORUM. At any meeting of the Board of Directors, or any
committee thereof, called in accordance with Section 2 of this Article XII,
the presence or
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participation of two directors, one director and a Designated Officer or two
Designated Officers shall constitute a quorum for the transaction of business.
The Board of Directors or the committees thereof, as the case may be,
shall, from time to time but in any event prior to such time or times as an
emergency may have occurred, designate the officers of the Company in a
numbered list (the "Designated Officers") who shall be deemed, in the order
in which they appear on such list, directors of the Company for purposes of
obtaining a quorum during an emergency, if a quorum of directors cannot
otherwise be obtained.
Section 4. BY-LAWS. At any meeting called in accordance with Section 2
of this Article XII, the Board of Directors or the committees thereof, as the
case may be, may modify, amend or add to the provisions of this Article XII
so as to make any provision that may be practical or necessary for the
circumstances of the emergency.
Section 5. LIABILITY. No officer, director or employee of the Company
acting in accordance with the provisions of this Article XII shall be liable
except for willful misconduct.
Section 6. REPEAL OR CHANGE. The provisions of this Article XII shall
be subject to repeal or change by further action of the Board of Directors or
by action of the shareholders, but no such repeal or change shall modify the
provisions of Section 5 of this Article XII with regard to action taken prior
to the time of such repeal or change.
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