Exhibit 3
BY-LAWS
OF
HERSHEY FOODS CORPORATION
Incorporated October 24, 1927
Under the Laws of the
State of Delaware
Corporate Headquarters Amended and Restated by the
100 Crystal A Drive Board of Directors as of
Hershey, Pennsylvania 17033 December 1, 1998
TABLE OF CONTENTS
Article I - STOCKHOLDERS........................................ 1
Section 1.Annual Meeting.................................. 1
Section 2.Special Meetings................................ 1
Section 3.Quorum and Required Vote........................ 1
Section 4.Conduct of Meetings............................. 2
Section 5.Notice of Stockholder Business.................. 2
Article II - STOCK.............................................. 3
Section 1.Stock Certificates.............................. 3
Section 2.Transfer Agents and Registrars.................. 3
Section 3.Transfer of Stock............................... 3
Section 4.Lost Certificates............................... 3
Section 5.Record Date..................................... 4
Section 6.Dividends....................................... 4
Article III - BOARD OF DIRECTORS................................ 4
Section 1.Number and Term of Office....................... 4
Section 2.Director Nominations............................ 4
Section 3.Board Governance................................ 5
Section 4.Stated Meetings................................. 5
Section 5.Special Meetings................................ 5
Section 6.Notice of Meetings.............................. 6
Section 7.Participation by Conference Telephone........... 6
Section 8.Quorum and Manner of Acting..................... 6
Section 9.Directors' Fees................................. 6
Article IV - COMMITTEES OF THE BOARD OF DIRECTORS............... 6
Section 1.Standing Committees............................. 6
Section 2.Other Committees................................ 6
Section 3.Committees, Meetings, Quorum and Manner
of Acting........................................ 6
Article V - OFFICERS............................................ 7
Section 1.Stated and Other Officers....................... 7
Section 2.Term of Office.................................. 7
Section 3.Removal of Officers............................. 7
Section 4.Vacancies....................................... 7
Section 5.Chairman of the Board of Directors.............. 7
Section 6.Chief Executive Officer......................... 7
Section 7.Other Officers.................................. 8
Section 8.Compensation.................................... 8
TABLE OF CONTENTS
Article VI - INDEMNIFICATION.................................... 8
Section 1.General......................................... 8
Section 2.Advancement of Expenses......................... 8
Section 3.Rights Not Exclusive............................ 9
Section 4.Claims.......................................... 9
Section 5.Limitation on Indemnification................... 9
Section 6.Amendment or Repeal............................. 9
Article VII - EMERGENCY CONDITIONS.............................. 9
Section 1.Board of Directors.............................. 9
Section 2.Chief Executive Officer......................... 10
Section 3.Notice of Meetings.............................. 10
Section 4.Powers During an Emergency Condition............ 10
Section 5.Liability....................................... 10
Section 6.Effectiveness of Other By-laws.................. 10
Article VIII - AMENDMENTS....................................... 11
BY-LAWS
OF
HERSHEY FOODS CORPORATION
ARTICLE I - STOCKHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as may be designated by resolution of the
Board of Directors. Any other proper business may be transacted at the annual
meeting.
Section 2. SPECIAL MEETINGS. A special meeting of stockholders may be
called by the Board of Directors, the Executive Committee of the Board of
Directors, or by stockholders holding in the aggregate at least twenty-five
percent of the outstanding votes entitled to be cast by holders of the Common
Stock and the Class B Common Stock voting together without regard to class on
the date such meeting is called.
Section 3. QUORUM AND REQUIRED VOTE. At any meeting of stockholders at
which any action is to be taken (including the election of directors) by the
vote of the holders of the Common Stock and the Class B Common Stock voting
together without regard to class in accordance with the provisions of the
Restated Certificate of Incorporation, the presence in person or by proxy of the
holders of a majority of the votes entitled to be cast by both such classes at
the meeting shall constitute a quorum. With respect to the taking of any action
(including, with respect to the Common Stock, the election of directors) as to
which either the Common Stock or the Class B Common Stock is entitled to vote
separately as a class pursuant to the provisions of the Restated Certificate of
Incorporation, the presence in person or by proxy of the holders of a majority
of the votes entitled to be cast by such class voting separately as a class at
the meeting shall constitute a quorum. Except as to the election of directors,
at every such meeting at which a quorum is present for the taking of any action,
a majority of the votes present or represented shall be necessary to take such
action with the Common Stock and the Class B Common Stock voting together
without regard to class or separately as a class or classes as are prescribed by
the provisions of the Restated Certificate of Incorporation. With respect to the
election of directors, the persons receiving the greatest number of votes, in
descending order, shall be elected for the positions to be filled. The absence
of a quorum as provided for herein for the taking of any one or more action(s)
shall not prevent the taking of any other action for which a quorum is present,
but the presence of a quorum for the taking of any one or more action(s) shall
not authorize the taking of any other action for which a quorum is not present.
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Section 4. CONDUCT OF MEETINGS. The Board of Directors and/or the
chair of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and, in the case of the chair
of the meeting to do all such acts as are appropriate for the proper conduct of
the meeting. Such rules, regulations or procedures, whether adopted by the Board
of Directors or prescribed by the chair of the meeting, may include, without
limitation: (a) the setting of the business for the meeting and the
establishment of an agenda or order of business for the meeting; (b) rules and
procedures for maintaining order at the meeting and the safety of those present;
(c) limitations on attendance at or participation in the meeting to the
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chair shall permit; (d) restrictions on
entry to the meeting after the time fixed for the commencement thereof; (e) not
requiring motions or seconding of motions and deeming directors nominated, or
proposals made, by or under the authority of the Board of Directors to be
properly before the meeting without further action; and (f) limitations and
restrictions as to the content of and the time allotted, if any, to questions or
comments by participants. Meetings of stockholders shall not be required to be
held in accordance with rules of parliamentary procedure.
Section 5. NOTICE OF STOCKHOLDER BUSINESS. At any meeting of the
stockholders, only such business, including proposals to be voted on (but
excluding the nomination and election of directors, which are covered in Section
2 of Article III of these By-Laws) shall be conducted as shall have been
properly brought before the meeting. To be properly brought before the meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) brought
before the meeting by or at the direction of the Board of Directors or by a
stockholder or stockholders holding, in the aggregate, at least twenty-five
percent (25%) of the outstanding votes entitled to be cast by holders of the
Common Stock and Class B Common Stock voting together without regard to class,
or (c) properly requested to be brought before the meeting by a stockholder. For
business to be properly requested to be brought before a meeting by a
stockholder pursuant to (c) above, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, such
written notice must be delivered to or mailed and received at the principal
executive offices of the Corporation (1) with respect to business to be
conducted at an annual meeting of stockholders, not later than the close of
business on the 90th day or earlier than the close of business on the 120th day
prior to the anniversary of the date of the immediately preceding annual
meeting, and (2) with respect to business to be conducted at a special meeting
of stockholders, not later than the close of business on the fifteenth (15th)
day following the day on which notice of such meeting was mailed to
stockholders. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the meeting: (i) the name and
address of such stockholder; (ii) the class and number of shares of the
Corporation's stock which are beneficially owned by the stockholder; (iii) a
brief description of the business or proposal desired to be brought before the
meeting and the reasons for conducting such at the meeting; (iv) any material
interest of the stockholder in such business or proposal; and (v) such other
information regarding such business or proposal as would be required to be
included in a proxy statement pursuant to the rules of the Securities and
Exchange Commission regardless of whether such other business or proposal may be
included in any such proxy
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statement. No business shall be conducted at any meeting of stockholders except
that which has been brought before such meeting in strict compliance with the
terms and procedures of this Section.
ARTICLE II - STOCK
Section 1. STOCK CERTIFICATES. The shares of the Corporation shall be
represented by certificates or shall be uncertificated. Each registered holder
of shares, upon request to the Corporation, shall be provided a certificate of
stock, representing the number of shares owned by such holder. Absent a specific
request for such a certificate by the registered owner or transferee thereof,
all shares shall be uncertificated upon the original issuance thereof by the
Corporation or upon the surrender of the certificate representing such shares to
the Corporation. Certificates for shares of the capital stock of the Corporation
shall be in such form as shall be approved by the Board of Directors. They shall
be signed by or have engraved thereon a facsimile signature of the Chief
Executive Officer and the Secretary or an Assistant Secretary, certifying the
number and class of the Corporation's shares held by such stockholder.
Section 2. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may,
in its discretion, appoint responsible banks or trust companies or other
appropriately qualified institutions to act as Transfer Agents and Registrars of
the stock of the Corporation; and, upon such appointments being made, no stock
certificate shall be valid until countersigned by one of such Transfer Agents
and registered by one of such Registrars. Where any such certificate is
registered with the manual signature of a Registrar, the countersignature of a
Transfer Agent may be a facsimile or engraved, stamped or printed. The Board of
Directors may also make such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of uncertificated
shares or certificates for shares of the capital stock of the Corporation.
Section 3. TRANSFER OF STOCK. Shares of stock may be transferred by
delivery of the certificates therefore, accompanied by an assignment in writing
on the back of the certificates or by written power of attorney to sell, assign
and transfer the same, signed by the record holder thereof , upon receipt of
proper transfer instructions from the owner of uncertificated shares, or upon
the escheat of said shares under the laws of any state of the United States. In
no event shall a transfer of shares affect the right of the Corporation to pay
any dividend upon the stock to the holder of record thereof for all purposes,
and no transfer shall be valid, except between the parties thereto, until such
transfer shall have been made upon the books of the Corporation.
Section 4. LOST CERTIFICATES. In case any certificate of stock
shall be lost, stolen or destroyed, the Board of Directors, in its discretion,
may authorize the issue of, or provide for the manner of issuing an
uncertificated share, or if requested by such holder, a substitute share
certificate in place of the certificate so lost, stolen or destroyed; provided,
that, in each such case, the applicant for a substitute certificate shall
furnish to the Corporation and to such of its
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Transfer Agents and Registrars as may require the same evidence to their
satisfaction, in their discretion, of the loss, theft or destruction of such
certificate and of the ownership thereof, and also such security or indemnity as
may be required by them.
Section 5. RECORD DATE. The Board of Directors may fix a record date for
the purpose of determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof; to receive payment of
any dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock; or for the
purpose of any other lawful action. The record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and the record date shall not be more than sixty (60) days prior to
the date of such meeting or such action, or, with respect to any such meeting,
less than ten (10) days before the date of such meeting. Only stockholders of
record on the record date shall be entitled to notice of and to vote at such
meeting, or to receive such dividends or rights, or to exercise such rights, as
the case may be. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting. The Board of Directors may fix a record date for
the purpose of determining the stockholders entitled to consent to corporate
action in writing without a meeting, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board of
Directors, and shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors.
Section 6. DIVIDENDS. The Board of Directors may declare and pay such
dividends upon the shares of the Corporation's capital stock out of the surplus
of the Corporation as it may deem expedient and as the condition of the
Corporation shall warrant.
ARTICLE III - BOARD OF DIRECTORS
Section 1. NUMBER AND TERM OF OFFICE. The Board of Directors shall have
the power by resolution to fix the number of directors and from time to time to
increase or decrease the number of directors. Each director shall continue in
office until his or her successor shall have been elected and qualified, or
until his or her earlier resignation or removal.
Section 2. DIRECTOR NOMINATIONS. Nominations for the election of
directors, whether by vote of the Common Stock and the Class B Common Stock
voting together without regard to class or of the Common Stock voting as a
separate class, may be made by (a) the Board of Directors, (b) the Committee on
Directors and Corporate Governance or other committee appointed by the Board of
Directors, (c) a stockholder or stockholders holding at least twenty-five
percent (25%) of the outstanding votes entitled to be cast by holders of the
Common Stock and Class B Common Stock voting together without regard to class,
or (d) any stockholder entitled to vote for the election of directors at a
meeting of stockholders. Any stockholder
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entitled to vote for the election of directors at a meeting of stockholders may
nominate one or more persons for election as director(s) as provided for in (d)
above only if written notice of such stockholder's intent to make such
nomination or nominations has been timely given to the Secretary of the
Corporation. To be timely, such written notice must be delivered to or mailed
and received at the principal executive offices of the Corporation (1) with
respect to an election to be held at an annual meeting of stockholders, not
later than the close of business on the 90th day or earlier than the close of
business on the 120th day prior to the anniversary of the date of the
immediately preceding annual meeting, and (2) with respect to an election to be
held at a special meeting of stockholders for the election of directors, not
later than the close of business on the fifteenth (15th) day following the date
on which notice of such meeting was mailed to stockholders. Each such notice
shall set forth: (i) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (ii) a
representation the stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder and the reason or reasons for such nomination or nominations; (iv)
such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement pursuant to the rules of
the Securities and Exchange Commission regardless of whether such nomination or
nominations may be included in any such proxy statement; and (v) the written
consent of each nominee to serve as a director of the Corporation if so elected.
No nominations for director shall be considered at a meeting of stockholders
except those made in strict compliance with terms and procedures of this
Section.
Section 3. BOARD GOVERNANCE. The Board of Directors and the Committee on
Directors and Corporate Governance of the Board shall each have the authority
and power to adopt rules, and determine the standards for, governance of the
Board and its standing and special committees and to set standards for the
performance of directors' duties.
Section 4. STATED MEETINGS. The Board of Directors may by resolution
appoint in advance the time and place for holding stated meetings of the Board,
and such stated meetings may be held at the time and place so appointed without
the giving of any notice. In case the day appointed for a stated meeting shall
fall on a legal holiday, such meeting shall be held on the next following
business day, not a legal holiday, at the same hour.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the Chairman or a Vice Chairman of
the Board of Directors or by the Chief Executive Officer or by one-sixth
(calculated to the nearest whole number) of the total number of directors
constituting the Board of Directors. Notice of any such meeting, setting forth
the time and place of the meeting, shall be mailed to each director, addressed
to him or her at his or her residence or usual place of business, not later than
the second day before the day on which the meeting is to be held, or shall be
sent to him or her at such place by telefacsimile, or be delivered
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personally, or by telephone or other oral means, not later than the day before
the day on which the meeting is to be held. Except as may be indicated in the
notice thereof, any and all business may be transacted at any special meeting.
Section 6. NOTICE OF MEETINGS. Notice of any meeting of the Board of
Directors or of any committee need not be given to any director if waived by him
or her whether before or after such meeting, or if he or she shall be present at
the meeting, and any meeting of the Board of Directors or of any committee shall
be a legal meeting without any notice thereof having been given, if all the
members shall be present.
Section 7. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Directors or of any committee may participate in a meeting of the Board or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at such
meeting.
Section 8. QUORUM AND MANNER OF ACTING. A majority of the total number of
directors constituting the Board of Directors at the time of any meeting shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors.
Section 9. DIRECTORS' FEES. The Board of Directors shall have
authority to determine the amount and form of compensation which shall be
paid to its members.
ARTICLE IV - COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. STANDING COMMITTEES. The standing committees of the Board of
Directors shall be the Audit Committee, the Compensation and Executive
Organization Committee, the Committee on Directors and Corporate Governance, and
the Executive Committee. The charter setting out the powers and duties of each
standing committee shall be set by resolution of the Board.
Section 2. OTHER COMMITTEES. The Board of Directors may appoint other
committees for such general or special purposes and for such terms as may be
established by the Board, and the Board may delegate to any such committees such
powers and duties of the Board as the Board may in its discretion determine.
Section 3. COMMITTEES, MEETINGS, QUORUM AND MANNER OF ACTING. Stated and
special meetings of the standing and other committees of the Board of Directors
shall be held and notice thereof given in the same manner provided for meetings
of the Board. The provisions of these By-laws relating to the determination of a
quorum, the manner of acting, and participation by
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conference telephone at meetings of the Board shall apply to the standing and
other committees of the Board.
ARTICLE V - OFFICERS
Section 1. STATED AND OTHER OFFICERS. The stated officers of the
Corporation shall be the following, one or more of which positions may be filled
or left vacant at the discretion of the Board of Directors (provided the
requirements of the Delaware General Corporation Law relating to officers are
complied with): the Chairman of the Board of Directors; the Chief Executive
Officer; the Vice Chairman or Vice Chairmen of the Board of Directors; the
President; the Chief Operating Officer; Senior Vice President(s); Executive Vice
President(s); Vice President(s); Division President(s); the Chief Financial
Officer; the General Counsel; the Controller; the Chief Accounting Officer; the
Secretary; and the Treasurer. More than one office may be held by the same
person. The Board of Directors or the Executive Committee of the Board of
Directors may also appoint such other officers and agents as may be necessary or
advisable in the conduct of the business and affairs of the Corporation.
Section 2. TERM OF OFFICE. The stated officers shall hold office for such
terms as the Board of Directors may designate, and if not so designated, until
their respective successors are elected and qualified or their earlier
resignation or removal. Other officers shall hold office for such terms as the
Board of Directors or Executive Committee may determine.
Section 3. REMOVAL OF OFFICERS. Any stated officer may be removed at any
time, either with or without cause, by the Board of Directors, and any other
officer may be removed at any time, either with or without cause, by the Board
of Directors or the Executive Committee.
Section 4. VACANCIES. A vacancy in any stated officer position may
be filled by the Board of Directors and a vacancy in any other officer
position may be filled by the Board of Directors or the Executive Committee.
Section 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall preside, when present, at all meetings of the stockholders
and of the Board of Directors. He shall have such other powers and perform such
other duties as may from time to time be assigned or required by the Board of
Directors.
Section 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
have active and general supervision and management over the business and affairs
of the Corporation and shall have full power and authority to act for all
purposes for and in the name of the Corporation in all matters except where
action of the Board is required by law, these By-laws, or resolutions of the
Board. In the case of the Chief Executive Officer being unavailable to perform
the duties of office for periods of short duration, the Chief Executive Officer
shall have the authority to
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designate who shall act as Chief Executive Officer for such period; failing such
designation, the Chief Operating Officer, if any, shall act as Chief Executive
Officer for such period.
Section 7. OTHER OFFICERS. The other officers of the Corporation shall
have such powers and perform such duties as may from time to time be assigned or
required by the Board of Directors, the Executive Committee, the Chief Executive
Officer, or their superior or as is customary and usual for the position.
Section 8. COMPENSATION. The compensation of the stated officers of
the Corporation shall be fixed, or the method for doing so shall be provided
for, by the Board of Directors.
ARTICLE VI - INDEMNIFICATION
Section 1. GENERAL. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by the Delaware General Corporation Law as it
presently exists or may be hereafter amended from time to time, any person who
was or is made or is threatened to be made a party or is otherwise involved in
any threatened, pending or completed action, suit, arbitration, alternative
dispute resolution mechanism or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") by reason of the fact that such
person, or a person for whom such person is the legal representative, is or was
(a) a director or officer of the Corporation or its subsidiaries, or
(b) a director, officer or employee of the Corporation and is or was
serving at the request of the Corporation through designation by
the Chief Executive Officer as a director, officer, employee,
agent or fiduciary of another corporation or of a partnership,
joint venture, trust, nonprofit entity or other enterprise,
including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person or on such person's behalf in connection with
any such Proceeding. However, except as provided for in Section 4 of this
Article, the Corporation shall be required to indemnify a person in connection
with a Proceeding (or part thereof) initiated by such person only if the
Proceeding (or part thereof) was or is authorized by the Board of Directors of
the Corporation.
Section 2. ADVANCEMENT OF EXPENSES. The Corporation shall pay the
reasonable expenses (including attorneys' fees) as and when incurred by a
director or officer of the Corporation in connection with any Proceeding
described in Section 1 of this Article in advance of its final disposition,
provided, however, that such payment shall be made only upon a receipt of an
undertaking by the director or officer to repay all expenses (including
attorneys' fees) advanced if it should be ultimately determined that the
director or officer is not entitled to be
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indemnified under this Article or otherwise. Payment of such expenses (including
attorneys' fees) incurred by employees of the Corporation designated by the
Chief Executive Officer in accordance with Section 1 of this Article may be made
by the Board of Directors in its discretion upon such terms and conditions, if
any, as it deems appropriate.
Section 3. RIGHTS NOT EXCLUSIVE. The rights conferred on any person by
this Article shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation, these By-laws, agreement, vote of stockholders or
disinterested directors, or otherwise. The indemnification and advancement of
expenses provided for by this Article shall continue as to a person who has
ceased to be a director, officer or employee described in Section 1 and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 4. CLAIMS. If a claim by a director, officer or employee
described in Section 1 for indemnification or advancement of expenses under this
Article is not paid in full within thirty days after a written claim therefor
has been received by the Corporation, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid in full all costs and expenses (including attorneys' fees)
of prosecuting such claim. In any such action, the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification or advancement of expenses under applicable law and this
Article.
Section 5. LIMITATION ON INDEMNIFICATION. The Corporation's obligation
to indemnify or advance expenses under this Article to a person who is or was
serving at the request of the Corporation (as provided for in Section 1) as a
director, officer, employee, agent or fiduciary of any other corporation,
partnership, joint venture, trust, nonprofit entity, employee benefit plan or
other enterprise shall be secondary and supplemental to any indemnification
obligation of such corporation, partnership, joint venture, trust, nonprofit
entity, employee benefit plan or other enterprise, and any amounts otherwise
payable under this Article shall be reduced by the amount such person is
entitled to pursuant to such other indemnification.
Section 6. AMENDMENT OR REPEAL. Any repeal or modification of
the foregoing provisions of this Article shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to or at the time of such repeal or modification.
ARTICLE VII - EMERGENCY CONDITIONS
Section 1. BOARD OF DIRECTORS. During any emergency resulting from an
attack on the United States or on a locality in which the Corporation conducts
its business or customarily holds meetings of its Board of Directors or its
stockholders or during a nuclear or atomic disaster or during the existence of
any catastrophe, or other similar emergency condition (any of the
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foregoing is hereinafter referred to as an "Emergency Condition"), as a result
of which a quorum of the Board of Directors cannot readily be convened for
action (including by telephone), then in addition to any director or directors
who are able and available, the elected officers of the Corporation, as and in
the order designated in advance by the Chief Executive Officer of the
Corporation and approved by the Board of Directors, who are able and available,
shall be deemed for all purposes to be directors to the extent required to
constitute a quorum for any meeting of the Board of Directors during such
Emergency Condition, notwithstanding any limitations or other provisions
contained in the Restated Certificate of Incorporation, these By-laws or
resolutions of the Board of Directors in effect at the time of the Emergency
Condition.
Section 2. CHIEF EXECUTIVE OFFICER. If as a result of any Emergency
Condition or due to his incapacitation, the Chief Executive Officer is unable or
unavailable to act, then until the Chief Executive Officer becomes able and
available to act or a new Chief Executive Officer is elected by the Board of
Directors, the officer of the Corporation, as and in the order designated in
advance by the Chief Executive Officer of the Corporation and approved by the
Board of Directors, who is able and available to act shall act as Chief
Executive Officer of the Corporation.
Section 3. NOTICE OF MEETINGS. During an Emergency Condition or during
any time in which the Chief Executive Officer becomes unable or unavailable to
act, a meeting of the Board of Directors may be called by the Chairman of the
Board or the Chair of the Committee on Directors and Corporate Governance. If
neither is able and available, then a meeting of the Board of Directors may be
called by any director, and if none are able and available to do so, by any
elected officer of the Corporation. Such meeting shall be called by notice of
the time and place given to such of the directors, or officers serving as
directors in accordance with this Article, as it may be feasible to reach at the
time and by such means (including electronic) as may be feasible at the time.
Section 4. POWERS DURING AN EMERGENCY CONDITION. During an Emergency
Condition, the Board of Directors (including those serving as directors pursuant
to Section 1 above) may take any acts in good faith deemed necessary and in the
best interests of the Corporation, including, but not limited to, changing the
head office or designating several alternative head offices or regional offices
of the Corporation, or providing for and from time to time modifying lines of
succession in the event that during any such Emergency Condition any or all
officers or agents of the Corporation shall for any reason be rendered incapable
of discharging their duties.
Section 5. LIABILITY. No officer or director shall be liable for
any act taken in accordance with this Article during an Emergency Condition,
except for willful misconduct.
Section 6. EFFECTIVENESS OF OTHER BY-LAWS. To the extent not
inconsistent with the provisions of this Article, the other By-laws of the
Corporation shall remain in effect during any Emergency Condition.
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ARTICLE VIII - AMENDMENTS
These By-laws may be amended or repealed, in whole or in part, and new
By-laws may be adopted, either by the affirmative vote of a majority of the
votes entitled to be cast by the holders of the Common Stock and the Class B
Common Stock voting together without regard to class, given at any meeting of
stockholders or by a consent, or by the affirmative vote of two-thirds
(calculated to the nearest whole number) of the total number of directors
constituting the Board of Directors, given at any meeting of directors or by a
consent.
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