EXHIBIT 3.2
BY-LAWS
OF
THE COCA-COLA COMPANY
AS AMENDED THROUGH DECEMBER 17, 1997
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 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.
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.
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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 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.
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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 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.
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.
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.
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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 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
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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 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
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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
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.
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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.
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
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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.
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.
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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, 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.
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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 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.
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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
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.
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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.
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.
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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 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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