EXHIBIT 3
BY-LAWS
OF
THE COCA-COLA COMPANY
AS IN EFFECT SINCE APRIL 15, 1993
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. The vote for the election of directors
shall be by written ballot. 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 written proxy.
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 meeting. At any
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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
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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.
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
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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
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
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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 71 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.
All actions of the Board of Directors designating
committees, or electing or removing members of such committees,
shall be taken by a resolution passed by a majority of the whole
Board.
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 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.
SECTION 2. ELECTION OF COMMITTEE MEMBERS. The members of
each committee shall be elected by the Board of Directors and shall
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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 amending the
Certificate of Incorporation of the Company, adopting an
agreement of merger or consolidation for the Company,
recommending to the stockholders of the Company the sale, lease
or exchange of all or substantially all of the Company's property
and assets, recommending to the stockholders a dissolution of the
Company or a revocation of a dissolution, or amending the By-Laws
of the Company.
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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
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. The
Compensation Committee shall review, fix and determine from time
to time the salaries and other remunerations of all officers of
the Company.
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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 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.
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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 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.
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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 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.
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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
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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.
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
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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, 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
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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 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
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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 whose facsimile signature has been
placed upon a certificate shall cease to be such officer
before the certificate is issued, the certificate may be
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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.
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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.
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.
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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 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
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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.