EXHIBIT 3(ii)
BY-LAWS OF
McDONALD'S CORPORATION
ARTICLE I - OFFICES
Section 1 - Principal Office - The registered office shall be established and
maintained at the office of The Prentice Hall Corporation System Inc., in the
City of Dover, in the County of New Castle, in the State of Delaware; and said
Corporation shall be the resident agent of this Corporation in charge thereof.
Section 2 - Other Offices - The Corporation may also have an office in the
Village of Oak Brook, State of Illinois, and may also have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1 - Place of Meetings - The Annual Meeting of Stockholders and any
other meetings of stockholders shall be held at such place as may from time to
time be determined by the Board of Directors and set forth in a notice
thereof.
Section 2 - Annual Election of Directors - The Annual Meeting of Stockholders
for the election of Directors and the transaction of other business shall be
held each year on the date determined by the Board of Directors. If this date
shall fall upon a legal holiday, the meeting shall be held on the next
succeeding business day. At each annual meeting, the stockholders entitled to
vote shall elect Directors to succeed those whose terms then expire and may
transact any other proper business. Any previously scheduled meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
Section 3 - Voting - Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote (or such lesser
number of votes as may be provided with respect to holders of any series of
Preferred Stock in a resolution of the Board of Directors adopted pursuant to
the Certificate of Incorporation), in person or by proxy, for each share of
stock entitled to vote held by such stockholder but no proxy shall be voted
after three (3) years from its date unless such proxy provides for a longer
period. Any motion brought before a stockholder meeting must be seconded
before a vote will be taken. All votes by stockholders on proposed amendments
to the Certificate of Incorporation and all elections of Directors, shall be
by written ballot. All elections for Directors shall be decided by a
plurality of the votes of the shares present at the meeting, in person or by
proxy, and entitled to vote on the election of directors; all other questions
shall be decided by majority vote of the shares entitled to vote on the
subject matter and present, in person or by proxy, at the meeting, except as
otherwise provided by the Certificate of Incorporation or the laws of the
State of Delaware; and where a separate vote by class is required, the
affirmative vote of the majority of shares of such class present in person or
represented by proxy at the meeting shall be the act of such class.
Section 4 - Quorum - At all meetings of stockholders, except as otherwise
required by law, by the Certificate of Incorporation, or by these By-Laws, a
majority of the shares entitled to vote, whether present in person or
represented by proxy, shall constitute a quorum. Whether or not there is such
a quorum present at any meeting, the chairman of the meeting or a majority of
the shares so present or represented, shall have power to adjourn the meeting
from time to time. No notice of the time and place of adjourned meetings need
be given except as required by law. At any such adjourned meeting at which
the requisite amount of stock entitled to vote shall be represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty (30) days or
if after the adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 5 - Special Meetings - Special meetings of the stockholders for any
purpose or purposes may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the Board of Directors and shall be
called by the Secretary in accordance with any such resolution.
Section 6 - Notice of Meetings - Written or printed notice stating the place,
date, and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given by the Secretary to each stockholder
entitled to vote thereat at his address as it appears on the records of the
Corporation not less than ten (l0) nor more than sixty (60) days before the
date of the meeting. Business transacted at any special meeting shall be
confined to the purpose or purposes stated in the notice of such special
meeting.
Section 7 - No Action Without Meeting - Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
Section 8 - Nomination and Stockholder Business -
(A) Annual Meetings of Stockholders - (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders at an annual meeting of
stockholders may be made (a) pursuant to the Corporation's notice of meeting,
(b) by or at the direction of the Board of Directors or (c) by any stockholder
of the Corporation who was a stockholder of record at the time of giving of
notice provided for in this Section 8, who is entitled to vote at the meeting
and who complied with the notice procedures set forth in this Section 8.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1)
of this Section 8, such business, as determined by the Chairman of the
meeting, must be a proper subject for stockholder action under Delaware
corporation law, and the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices
of the Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed by more than sixty (60) days
from such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the ninetieth (90th) day prior to such annual
meeting and not later than the close of business on the later of the sixtieth
(60th) day prior to such annual meeting or the tenth (10th) day following the
date on which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the ``Exchange Act'') (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected) and a representation as to whether or not the stockholder
intends to solicit proxies in support of such proposed nominee; (b) as to any
other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting, any material interest
in such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made, and a representation as to whether or not
the stockholder intends to solicit proxies in support of such proposal; and
(c) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Section 8 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees for
Directors or specifying the size of the increased Board of Directors made by
the Corporation at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by this
Section 8 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders - Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting of stockholders pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors or (b) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section 8, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this Section 8. Nominations by
stockholders of such persons for election to the Board of Directors may be
made at such a special meeting of stockholders if the stockholder's notice
required by paragraph (A)(2) of this Section 8 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier
than the ninetieth (90th) day prior to such special meeting and not later than
the close of business on the later of the sixtieth (60th) day prior to such
special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(C) General - (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 8 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 8. The Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with the
procedures set forth in this Section 8 and, if any proposed nomination or
business is not in compliance with this Section 8 or if the stockholder
solicits proxies in support of such stockholder's proposed nomination or
proposed business without such stockholder having made the representation
required by paragraph (A)(2) of this Section 8, to declare that such defective
proposal shall be disregarded.
(2) For purposes of this Section 8, ``public announcement'' shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 8, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 8. Nothing in this Section 8 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE III - DIRECTORS
Section 1 - Number and Term - The number of Directors who shall constitute the
whole Board of Directors shall be the number fixed from time to time by the
Board of Directors in accordance with the Certificate of Incorporation and
shall in no event be less than eleven (11) nor more than twenty-four (24). At
the 1983 Annual Meeting of Stockholders, the Directors were divided into three
(3) classes, as nearly equal in number as possible with the term of office of
the first class to expire at the 1984 Annual Meeting of Stockholders, the term
of office of the second class to expire at the 1985 Annual Meeting of Stock-
holders, and the term of office of the third class to expire at the 1986
Annual Meeting of Stockholders. At each Annual Meeting of Stockholders
following such initial classification and election, Directors elected to
succeed those whose terms then expire shall be elected for a term of office
expiring at the third succeeding Annual Meeting of Stockholders after their
election and until their successors shall be elected and shall qualify.
Section 2 - Resignations - Any Director or member of a committee of the Board
of Directors 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 President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
Section 3 - Newly-Created Directorships and Vacancies - Subject to the rights
of the holders of any series of Preferred Stock then outstanding, newly-
created directorships resulting from any increase in the authorized number of
Directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the Directors then in office, though
less than a quorum. Directors so chosen shall hold office for a term expiring
at the Annual Meeting of Stockholders at which the term of the class to which
they have been elected expires and until their successors shall be elected and
shall qualify. No decrease in the number of Directors constituting the Board
of Directors shall shorten the term of any incumbent Director.
Section 4 - Removal - Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any Director, or the entire Board of
Directors, may be removed from office at any time but only for cause and only
by the affirmative vote of the holders of eighty percent (80%) of the voting
power of all of the shares of the Corporation entitled to vote for the elec-
tion of Directors.
Section 5 - Powers - The Board of Directors shall exercise all of the powers
of the Corporation, except such as are by law or by the Certificate of
Incorporation of the Corporation or by these By-Laws conferred upon or
reserved to the stockholders.
Section 6 - Committees -
(A) Executive Committee - There shall be an Executive Committee of the
Board of Directors selected from time to time by the Board of Directors from
among its own membership. Except as hereinafter provided, the Executive
Committee shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it. Except as otherwise specified in a
resolution of the Board of Directors, the Executive Committee shall not have
the power or authority of the Board of Directors in reference to:
(i) recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; (ii) recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution; (iii) issuing stock; (iv) appointing or removing an officer or
Director of the Corporation; or (v) fixing the designations and any of the
preferences or rights of shares relating to dividends, redemption, dissolution
any distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation
or fix the number of shares of any series of stock or authorize the increase
or decrease of the shares of any series.
(B) Other Committees of the Board - The Board of Directors may, by
resolution or resolutions passed by a majority of Directors present at any
meeting at which there is a quorum, designate one or more other committees,
each committee to consist of two or more of the Directors of the Corporation
which, to the extent provided in said resolution or resolutions or in these
By-Laws shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation and may have
power to authorize the seal of the Corporation to be affixed to all papers
which may require it.
(C) Limitation on Committee Authority - No committee shall have the
power or authority of the Board of Directors in reference to (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the Delaware General Corporation Law to be submitted to
stockholders for approval; or (ii) adopting, amending or repealing the By-Laws
of the Corporation.
(D) Procedural Provisions - A majority of the members of a committee
shall constitute a quorum for the transaction of business, and the act of a
majority of such members present at any meeting at which there is a quorum
shall be the act of such committee. If at any meeting of a committee there
shall be less than a quorum present, a majority of those members present may
adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned. Notwithstanding the foregoing, (i) any action of
the Executive Committee shall be taken only with the unanimous approval of all
its members; and (ii) at the request of any member of the Executive Committee,
consideration of any action proposed to be taken by the Committee shall be
deferred to the Board of Directors.
The Board of Directors may designate one or more Directors as alternate
members of any committee who may replace any absent or disqualified member at
any meeting of the committee. Such committee or committees shall have such
name or names as may be stated in these By-Laws or as may be determined from
time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its proceedings and report its
acts and proceedings to the Board.
Section 7 - Meetings - The newly-elected Directors may hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum be present, immediately after the Annual Meeting of the Stockholders,
or the time and place of such meeting may be fixed by consent in writing of
all the Directors. Commencing in 1984, the Board of Directors may, without
notice, hold its first meeting subsequent to the election of a class of
Directors for the purpose of organization and the transaction of business, if
a quorum be present, immediately after the Annual Meeting of the Stockholders,
or the time and place of such meeting may be fixed by consent in writing of
all the Directors.
Regular meetings of the Board of Directors may be held without notice at such
places, within or without the State of Delaware, and times as shall be
determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of
the Board or the President and shall be called by the Secretary at the
direction of the Chairman of the Board or the President or on the written
request of any two (2) Directors on notice to each Director sent at least
twenty-four (24) hours prior to each such meeting. Notice of each such
meeting shall be delivered personally to each Director or sent by telegram,
telex, or electronic mail to such a place as designated from time to time by
each Director or, in the absence of any such designation, to the Director's
last known place of business or residence. Any such meeting shall be held at
such place or places, within or without the State of Delaware, and times as
may be determined by the Directors or as shall be stated in the notice.
Section 8 - Quorum - A majority of the Directors shall constitute a quorum for
the transaction of business and the act of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the Certificate
of Incorporation, the laws of the State of Delaware, or these By-Laws. If at
any meeting of the Board of Directors there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained and no further notice thereof need be given other
than by announcement at the meeting which shall be so adjourned.
Section 9 - Compensation - No employee of the Company shall receive any
additional compensation or remuneration for serving as a member of the Board
of Directors. By resolution of the Board of Directors, those members of the
Board of Directors who are not otherwise employed by the Company may receive a
fixed fee, payable quarterly, together with a fee for attendance at each
meeting. For purposes of this Section, members of the Board of Directors who
serve the Company in capacities, such as outside consultants, attorneys, or
business advisors, shall not be considered by virtue of such service as being
employed by the Company. Nothing herein contained shall be construed to
preclude any Director from serving the Corporation in any other capacity as an
officer, agent, or otherwise and receiving compensation therefor.
Section 10 - Action Without Meeting - Unless otherwise restricted by the
Certificate of Incorporation or the By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof, may be taken without a meeting if all members of the Board of Direc-
tors, or of such committee, as the case may be, consent thereto in writing and
such written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
ARTICLE IV - OFFICERS
Section 1 - Officers - The Corporation shall have such officers with such
titles and duties as shall be stated in these By-Laws. Except as provided in
Article IV, Section 2 of these By-Laws, all of such officers shall be
appointed by the Board of Directors. None of the officers, except the Chief
Executive Officer, Senior Chairman and Chairman of the Board need be
Directors. No person shall hold the office of Secretary who at that time also
holds the office of Senior Chairman, Chairman of the Board or Chief Executive
Officer.
Section 2 - Other Officers - In addition to the officers described in these
By-Laws, the Corporation may have: (i) officers with such titles and duties
as may be determined by any resolution of the Board of Directors which is not
inconsistent with these By-Laws; and (ii) such vice presidents and assistant
vice presidents as may be appointed by the Chief Executive Officer with such
duties as may be determined by the Chief Executive Officer. In addition, the
Chief Executive Officer shall have the right to designate additional titles
(such as, by way of example and not as a limitation, Zone Vice President,
Chief Operations Officer, Chief Marketing Officer) for any officers appointed
in accordance herewith as he or she may determine as necessary or appropriate.
The Chief Executive Officer may also appoint one or more assistant, U.S. and
international controllers; international, assistant, associate and deputy
general counsels; and assistant treasurers as he or she may deem necessary,
who shall hold such office for such term and shall exercise such power and
perform such duties as shall be determined from time to time by the Chief
Executive Officer.
Section 3 - Salaries - The salaries of officers of the Corporation appointed
by the Board of Directors shall be fixed by the Board of Directors.
Section 4 - Term of Office - Each officer of the Corporation shall hold his or
her office until his or her successor is elected and qualified or until his or
her earlier resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Any officer elected or appointed by the
Board of Directors or the Chief Executive Officer may be removed at any time
by the affirmative vote of a majority of the Board of Directors. Except as
provided in Article IV, Section 2 of these By-Laws, any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors.
Section 5 - Senior Chairman - The Senior Chairman shall consult with the
Chairman of the Board, Chief Executive Officer, Chairman - U.S.A., President
and Chief Executive Officer - U.S.A., and President and Chief Executive
Officer - International on the management of the Corporation and shall assist
and cooperate with the other officers of the Corporation in carrying out all
orders, resolutions, duties, and policies adopted or established by the Board
of Directors of the Corporation. In the event of the inability of the
Chairman to act, the Senior Chairman shall preside at all meetings of the
stockholders of the Corporation and of the Board of Directors of the
Corporation.
Section 6 - Chairman of the Board - The Chairman of the Board shall preside
at all meetings of the stockholders of the Corporation and of the Board of
Directors; he or she shall see that all orders, resolutions, and policies
adopted or established by the Board of Directors are carried into effect; and
he or she shall do and perform such other duties as from time to time may be
assigned by the Board of Directors of the Corporation.
Section 7 - Chief Executive Officer - The Chief Executive Officer shall have
responsibility for the general and active management of the business of the
Corporation and shall do and perform such other duties as from time to time
may be assigned to the Chief Executive Officer by the Board of Directors.
Section 8 - Vice Chairman of the Board - The Vice Chairman of the Board shall
report to the Chief Executive Officer; he or she shall be responsible for the
implementation of orders, resolutions, and policies adopted or established by
the Board of Directors and the Chief Executive Officer; and he or she shall do
and perform such other duties as from time to time may be assigned by the
Board of Directors or Chief Executive Officer. In addition, in the event of
the inability of the Chairman of the Board or the Senior Chairman to act, he
or she shall preside at all meetings of the stockholders of the Corporation
and of the Board of Directors of the Corporation.
Section 9 - Chairman - U.S.A. - The Chairman - U.S.A. shall report to the
Chief Executive Officer; he or she shall oversee the direction of United
States operations and shall be responsible for the implementation of orders,
resolutions and policies adopted or established by the Board of Directors and
Chief Executive Officer; and he or she shall do and perform such other duties
as from time to time may be assigned by the Board of Directors or the Chief
Executive Officer.
Section 10 - President and Chief Executive Officer - U.S.A. - The President
and Chief Executive Officer - U.S.A. shall report to the Chairman - U.S.A.; he
or she shall direct United States operations and shall be responsible for the
day-to-day activities of the Corporation in the United States; and he or she
shall do and perform such other duties as from time to time may be assigned by
the Board of Directors, the Chief Executive Officer or the Chairman - U.S.A..
Section 11 - President and Chief Executive Officer - International - The
President and Chief Executive Officer - International shall report to the
Chief Executive Officer; he or she shall direct international operations and
shall be responsible for the day-to-day activities of the Corporation in
international markets; and he or she shall do and perform such other duties as
from time to time may be assigned by the Board of Directors or the Chief
Executive Officer.
Section 12 - Other Offices - The following officers shall report to such
person as the Chief Executive Officer may designate and, in addition to the
duties which may be outlined below, shall do and perform such duties as from
time to time may be assigned to such officer by the Board of Directors or the
Chief Executive Officer.
(A) Executive and Senior Vice Presidents - One or more Senior Executive
Vice Presidents, Executive Vice Presidents, and Senior Vice Presidents may be
appointed by the Board of Directors.
(B) Chief Financial Officer - The Chief Financial Officer shall direct
all of the financial activities of the Corporation. The Chief Financial
Officer shall have such power and exercise such authority as deemed necessary
or desirable to maintain the financial integrity of the Corporation.
(C) Controller - The Controller shall be the principal accounting
officer of the Corporation and shall keep or shall cause to be kept a true
account of all transactions and of the assets and liabilities of the
Corporation. The Controller shall prepare and submit to the Chief Financial
Officer or, in the absence of the Chief Financial Officer to the Chief
Executive Officer, such financial statements and schedules as may be required
to keep the Chief Financial Officer and Chief Executive Officer currently
informed of the operations and financial condition of the Corporation.
(D) General Counsel - The General Counsel shall be a licensed attorney
at law and shall be the principal legal officer of the Corporation. The
General Counsel shall have such power, exercise such authority and provide
such counsel to the Corporation as deemed necessary or desirable to enforce
the rights and protect the property and integrity of the Corporation.
(E) Treasurer - The Treasurer shall have custody of the Corporate funds
and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He or she shall deposit
all monies and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors or the Chief Executive Officer, taking
proper vouchers for such disbursements. He or she shall render to the
Chairman of the Board, Chief Executive Officer and the Board of Directors, at
the regular meetings of the Board of Directors, or whenever they may request
it, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, he or she shall give the Corporation a bond (which shall be renewed
every six (6) years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in
case of his or her death, resignation, retirement, or removal from office, of
all books, papers, vouchers, money, and other property of whatever kind in his
or her possession or under his or her control belonging to the Corporation.
(F) Secretary - The Secretary shall give, or cause to be given, notice
of all meetings of stockholders and Directors and all other notices required
by law or by these By-Laws; and in the case of his or her absence or refusal
or neglect so to do, any such notice may be given by any person thereunto
directed by the Chairman of the Board or by the Board of Directors or
stockholders upon whose requisition the meeting is called as provided in these
By-Laws. He or she shall record all the proceedings of the meetings of the
Corporation and of the Board of Directors. He or she shall have custody of
the seal of the Corporation and shall have the authority to affix the same to
all instruments requiring it and to attest the same. The Board of Directors
may appoint one or more Assistant Secretaries who, in the order determined by
the Chief Executive Officer, shall, in the absence or disability of the
Secretary, perform the duties of the Secretary; and who shall have the
authority to affix the seal of the Corporation and to attest the same. The
Board of Directors may also give general authority to any other officer to
affix the seal of the Corporation and to attest the same.
ARTICLE V - INDEMNIFICATION AND INSURANCE
Section 1 - Right to Indemnification -
(A) Indemnified Persons - Each person who was or is made a party or is
threatened to be made a party to or is involved in or called as a witness in
any Proceeding because he or she is an Indemnified Person, shall be
indemnified and held harmless by the Corporation to the fullest extent
permitted under the Delaware General Corporation Law (the ``DGCL''), as the
same now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than the DGCL permitted the Corporation
to provide prior to such amendment). Such indemnification shall cover all
expenses incurred by an Indemnified Person (including, but not limited to,
attorneys' fees and other expenses of litigation) and all liabilities and
losses (including, but not limited to, judgments, fines, ERISA or other excise
taxes or penalties and amounts paid or to be paid in settlement) incurred by
such person in connection therewith.
(B) Additional Indemnified Persons - (1) Each Additional Indemnified
Person who was or is made a party or is threatened to be made a party to or is
involved in or called as a witness in any Proceeding (other than an action by
or in the right of the Corporation) because he or she is an Additional
Indemnified Person shall be indemnified and held harmless by the Corporation
against expenses (including, but not limited to, attorneys' fees and other
expenses of litigation) and all liabilities and losses (including, but not
limited to, judgments, fines, ERISA or other excise taxes or penalties and
amounts paid or to be paid in settlement) incurred by such person in
connection therewith if such Additional Indemnified Person acted in Good
Faith. The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that an Additional Indemnified Person did not act
in Good Faith.
(2) Each Additional Indemnified Person who was or is made a party
or is threatened to be made a party to or is involved in or called as a
witness in any Proceeding brought by or in the right of the Corporation to
procure a judgment in its favor because he or she is an Additional Indemnified
Person shall be indemnified and held harmless by the Corporation against
expenses (including, but not limited to, attorneys' fees and other expenses of
litigation) incurred by such person in connection therewith if such Additional
Indemnified Person acted in Good Faith, 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 for negligence or misconduct in the
performance of such person's duty to the Corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in
which such Proceeding shall have been brought or is pending shall determine
upon application that despite the adjudication of liability but in view of all
the circumstances of the case, such Additional Indemnified Person is fairly
and reasonably entitled to indemnity for such expenses which such Court of
Chancery or such other court shall deem proper.
(3) Any indemnification under paragraphs (B)(1) or (B)(2) of this
Section 1 (unless ordered by a court) shall be made by the Corporation unless
it is determined that indemnification of the Additional Indemnified Person is
not proper in the circumstances because such person has not met the applicable
standard of conduct set forth in either paragraph (B)(1) or (B)(2) of this
Section 1. Such determination shall be made: (a) by the Board of Directors
of the Corporation by a majority vote of a quorum consisting of Directors who
are not parties to such Proceeding, or (b) if such a quorum is not obtainable,
or, even if obtainable if a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion. Such determination shall be
made within one hundred twenty (120) days (or such longer period established
as set forth in the next sentence) after receipt by the Board of Directors of
written notice from the Additional Indemnified Person seeking indemnification
setting forth in reasonable detail the facts known to such person concerning
the Proceeding. The period during which the Board of Directors may determine
that indemnification is not proper may be extended to a period established by
the Board of Directors by written notice to the Additional Indemnified Person
delivered to such person within one hundred twenty (120) days after receipt by
the Board of Directors of such person's written notice seeking indemnifi-
cation.
(C) Denial of Authorization for Certain Proceedings - Notwithstanding
anything to the contrary in this Article V, except with respect to
indemnification of Indemnified Persons specified in Section 3 of this Article
V, the Corporation shall indemnify an Indemnified Person or Additional
Indemnified Person in connection with a Proceeding (or part thereof) initiated
by such person only if (i) authorization for such Proceeding (or part thereof)
was not denied by the Board of Directors of the Corporation prior to the
earlier of (x) sixty (60) days after receipt of notice thereof from such
Indemnified Person or one hundred twenty (120) days after receipt of notice
thereof from such Additional Indemnified Person, as the case may be, or (y) a
Change of Control, and (ii) in the case of a Proceeding initiated by an
Additional Indemnified Person, it is not a Proceeding to enforce rights under
this Article V.
(D) Certain Defined Terms - For purposes of this Article V, the
following terms shall have the following means (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
(i) a ``Proceeding'' is any investigation, action, suit or
proceeding, whether civil, criminal, administrative or
investigative, and any appeal therefrom;
(ii) an ``Indemnified Person'' is a person who is, was, or had
agreed to become (A) a Director of the Corporation
(including, in the case of such person seeking indemnifica-
tion while serving as a Director who is or was an officer of
the Corporation, such person in his capacity as an officer)
or (B) an officer, employee or a Delegate, as defined herein,
of the Corporation (but, except as included within clause
(A), with respect to such officers, employees and Delegates
and persons agreeing to become officers, employees or
Delegates only as to Proceedings occurring after a Change of
Control, as defined herein, arising out of acts, events or
omissions occurring prior or subsequent to, or simultaneously
with, such Change of Control), or the legal representative or
any of the foregoing;
(iii) a ``Delegate'' is (A) any employee of the Corporation serving
as a director or officer (or in a substantially similar
capacity) of an entity or enterprise (x) in which the
Corporation owns a l0% or greater equity interest or (y) the
principal function of which is to service or benefit the
Corporation or its licensees; (B) any employee of the
Corporation serving as a trustee or fiduciary of an employee
benefit plan of the Corporation or any entity or enterprise
referred to in clause (A); and (C) any employee serving at
the request of the Corporation in any capacity with any
entity or enterprise other than the Corporation;
(iv) a ``Change of Control'' shall be deemed to have occurred if
(A) any ``Person'' (as that term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) is
or becomes (except in a transaction approved in advance by
the Board of Directors of the Corporation) the beneficial
owner (as defined in Rule 13d-3 under such Act), directly or
indirectly, of securities of the Corporation representing 20%
or more of the combined voting power of the Corporation's
then outstanding securities, or (B) during any period of two
consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof unless the election of each Director who was not a
Director at the beginning of the period was approved by a
vote of at least two-thirds of the Directors then still in
office who were Directors at the beginning of the period;
(v) an ``Additional Indemnified Person'' is a person who is, was,
or had agreed to become an officer, Delegate or employee of
the Corporation and who is not an Indemnified Person; and
(vi) ``Good Faith'' shall mean with respect to any Additional
Indemnified Person that such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal Proceeding, such person had no
reasonable cause to believe such conduct was unlawful.
Section 2 - Expenses - Expenses, including attorneys' fees, incurred by a
person indemnified pursuant to Section 1 of this Article V in defending or
otherwise being involved in a Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding, including any appeal
therefrom, upon receipt of an undertaking (the ``Undertaking'') by or on
behalf of such person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Corporation; provided, that (A) if a Change of Control has occurred, such
person shall be required to deliver to the Corporation the Undertaking only if
such an undertaking is required under the DGCL then in effect, and (B) in
connection with a Proceeding (or part thereof) initiated by such person,
except a Proceeding authorized by Section 3 of this Article V, the Corporation
shall pay said expenses in advance of final disposition only if authorization
for such Proceeding (or part thereof) was not denied by the Board of Directors
of the Corporation prior to the earlier of (i) sixty (60) days in the case of
an Indemnified Person, or one hundred twenty (120) days in the case of an
Additional Indemnified Person, after receipt of a request for such advancement
accompanied by the Undertaking or (ii) a Change of Control. A person to whom
expenses are advanced pursuant hereto shall not be obligated to repay pursuant
to the Undertaking until the final determination of any pending Proceeding in
a court of competent jurisdiction concerning the right of such person to be
indemnified or the obligation of such person to repay such expenses.
Section 3 - Protection of Rights - If a claim by an Indemnified Person under
Section 1 of this Article V is not promptly paid in full by the Corporation
after a written claim has been received by the Corporation or if expenses
pursuant to Section 2 of this Article V have not been promptly advanced after
a written request for such advancement by an Indemnified Person (accompanied
by the Undertaking if required by Section 2 of this Article V) has been
received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim or the
advancement of expenses. If successful, in whole or in part, in such suit,
such claimant shall also be entitled to be paid the reasonable expense
thereof. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any Proceeding
in advance of its final disposition where the Undertaking has been tendered to
the Corporation (or, if a Change of Control has occurred, the Undertaking is
not required to be tendered to the Corporation under the DGCL) that
indemnification of the claimant is prohibited by law, but the burden of
proving such defense shall be on the Corporation. If a Change of Control has
occurred, a claimant making a claim under Section 1 of this Article V or
seeking to avoid repayment to the Corporation of expenses advanced pursuant to
Section 2 of this Article V shall have (i) the right, but not the obligation,
to have a determination made by independent legal counsel, at the expense of
the Corporation, as to whether indemnification of the claimant is prohibited
by law; and (ii) shall have the right (A) to select as independent legal
counsel to make such determination any legal counsel designated for such
purpose in a resolution adopted by the Board of Directors that is in full
force and effect immediately prior to the Change of Control or (B), if the
Board of Directors has failed to designate any such legal counsel or all such
counsel refuse to make such a determination, to request the American
Arbitration Association, at the expense of the Corporation, to select an
independent legal counsel familiar with matters of the type in dispute to make
such a determination. If a determination has been made in accordance with the
preceding sentence, no determination inconsistent therewith by other legal
counsel, by the Board of Directors, or by stockholders shall be of any force
or effect. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination, if required, prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that indemnification of the
claimant is prohibited, shall be a defense to the action or create a
presumption that indemnification of the claimant is prohibited.
Section 4 - Miscellaneous -
(A) Non-Exclusivity of Rights - The rights conferred on any person by
this Article V shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the Certificate
of Incorporation, By-Law, agreement, vote of stockholders or disinterested
Directors or otherwise. The Board of Directors shall have the authority, by
resolution, to provide for such indemnification of agents of the Corporation
or others and for such other indemnification of Directors, officers, Delegates
or employees, of the Corporation as it shall deem appropriate.
(B) Insurance, contracts, and funding - The Corporation may maintain
insurance, at its expense, to protect itself and any Director, officer,
Delegate, employee, or agent of, the Corporation against any expenses,
liabilities or losses, whether or not the Corporation would have the power to
indemnify such person against such expenses, liabilities or losses under the
DGCL. The Corporation hereby agrees that, for a period of six (6) years after
any Change of Control, it shall cause to be maintained policies of directors'
and officers' liability insurance providing coverage at least comparable to
and in the same amounts as that provided by any such policies in effect
immediately prior to such Change of Control. The Corporation may enter into
contracts with any Director, officer, Delegate or employee of the Corporation
in furtherance of the provisions of this Article V and may create a trust
fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may
be necessary to effect the advancing of expenses and indemnification as
provided in this Article V.
(C) Contractual nature - The provisions of this Article V as amended
effective December 17, 1990 shall be applicable with respect to events, acts
and omissions occurring prior to or subsequent to such Amendment, and shall
continue as to a person who has ceased to be a Director, officer, Delegate or
employee and shall inure to the benefit of the heirs, executors and
administrators of such person. This Article V shall be deemed to be a
contract between the Corporation and each person who, at any time that this
Article V as so amended is in effect, serves or agrees to serve in any
capacity which entitles him to indemnification hereunder and any repeal or
other modification of this Article V or any repeal or modification of the DGCL
or any other applicable law shall not limit any rights of indemnification for
Proceedings then existing or arising out of events, acts or omissions
occurring prior to such repeal or modification, including, without limitation,
the right to indemnification for Proceedings commenced after such repeal or
modification to enforce this Article V with regard to Proceedings arising out
of acts, omissions or events arising prior to such repeal or modification.
(D) Cooperation - Each Indemnified Person and Additional Indemnified
Person shall cooperate with the person, persons or entity making the
determination with respect to such Indemnified Person's or Additional
Indemnified Person's entitlement to indemnification under this Article V,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to such
Indemnified Person or Additional Indemnified Person and reasonably necessary
to such determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by such Indemnified Person or Additional Indemnified
Person in so cooperating with the person, persons or entity making such
determination shall be borne by the Corporation (irrespective of the
determination as to such Indemnified Person's or Additional Indemnified
Person's entitlement to indemnification) and the Corporation hereby
indemnifies and agrees to hold such Indemnified Person or Additional Indemni-
fied Person harmless therefrom.
(E) Subrogation - In the event of any payment under this Article V to an
Indemnified Person or Additional Indemnified Person, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
such Indemnified Person or Additional Indemnified Person, who shall execute
all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the
Corporation to bring suit to enforce such rights.
(F) Severability - If this Article V, or any portion hereof shall be
invalidated or held to be unenforceable on any ground by any court of
competent jurisdiction, the decision of which shall not have been reversed on
appeal, this Article V shall be deemed to be modified to the minimum extent
necessary to avoid a violation of law and, as so modified, this Article V and
the remaining provisions hereof shall remain valid and enforceable in
accordance with their terms to the fullest extent permitted by law.
ARTICLE VI - MISCELLANEOUS
Section 1 - Certificates of Stock - Every holder of stock in the Corporation
shall be entitled to have a certificate signed by or in the name of the
Corporation by the Senior Chairman of the Board or the Chairman of the Board,
Chief Executive Officer or a President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him in the
Corporation. If such certificate is countersigned (l) by a transfer agent or
(2) by a registrar, any other signature on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Section 2 - Lost Certificates - A new certificate of stock may be issued in
the place of any certificate theretofore issued by the Corporation alleged to
have been lost, stolen, or destroyed; and the Directors may, in their
discretion, require the owner of the lost, stolen, or destroyed certificate,
or his legal representative, to give the Corporation a bond in such sum as
they may direct not exceeding double the value of the stock to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate, or the issuance
of any such new certificate.
Section 3 - Transfer of Shares - The shares of stock of the Corporation shall
be transferable upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives by the surrender of the old
certificates duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to transfer, to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers or
to such other person as the Directors may designate, by whom they shall be
canceled; and new certificates shall thereupon be issued. A record shall be
made of each transfer and a duplicate thereof mailed to the Delaware office;
and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be expressed in the entry of the transfer.
Section 4 - Record Date - In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or 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, the Board of Directors may fix, in
advance, a record date which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and
which shall not be more than sixty (60) nor less than ten (l0) days before the
date of such meeting nor more than sixty (60) days prior to any other action.
Section 5 - Registered Stockholders - The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner and to hold liable
for calls and assessments a person registered on its books as the owner of
shares and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
Section 6 - Dividends - Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Dividends may be
paid in cash, in property, or in shares of the capital stock of the
Corporation; and in the case of a dividend paid in shares of theretofore
unissued capital stock of the Corporation, the Board of Directors shall, by
resolution, direct that there be designated as capital in respect of such
shares an amount not less than the aggregate par value of such shares and, in
the case of shares without par value, such amount as shall be fixed by the
Board of Directors. Before declaring any dividend, there may be set apart out
of any funds of the Corporation available for dividends, such sum or sums as
the Directors from time to time in their discretion deem proper for working
capital or as a reserve fund to meet contingencies or for such other purposes
as the Directors shall deem conducive to the interests of the Corporation.
Section 7 - Seal - The Corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation, and the words,
``CORPORATE SEAL DELAWARE.'' Said seal may be used by causing it, or a
facsimile thereof, to be impressed or affixed or reproduced or otherwise.
Section 8 - Fiscal Year - The fiscal year of the Corporation shall begin on
the first day of January in each year and shall end on the last day of
December in each year.
Section 9 - Checks - All checks, drafts, or other orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of
the Corporation and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
Section 10 - Notice and Waiver of Notice - Whenever any notice is required by
these By-Laws to be given, personal notice is not meant unless expressly so
stated. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on
the records of the Corporation. Stockholders not entitled to vote shall not
be entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatever is required to be given under the provisions of
any law or under the provisions of the Certificate of Incorporation of the
Corporation or these By-Laws, a waiver thereof in writing signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
Section 11 - Ratification by Stockholders - Any contract, transaction, or act
of the Corporation or of the Directors or of any committee which shall be
ratified by the holders of a majority of the shares of stock of the
Corporation present in person or by proxy and voting at any annual meeting or
at any special meeting called for such purpose, shall, insofar as permitted by
law or under the provisions of the Certificate of Incorporation of the
Corporation or these By-Laws, be as valid and binding as though ratified by
every stockholder of the Corporation.
Section 12 - Interested Directors - No contract or transaction between the
Corporation and one or more of its Directors or officers or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are directors
or officers or have a financial interest, shall be void or voidable solely for
this reason or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose if:
(1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors or the committee and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(2) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
shareholders; or
(3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved, or ratified by the Board of
Directors, a committee thereof, or the shareholders.
Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE VII - AMENDMENTS
The By-Laws of this Corporation may be made, altered, amended, or repealed by
the affirmative vote of a majority of the Board of Directors at any regular
meeting of the Board of Directors or at any special meeting of the Board of
Directors if notice of the proposed making, alteration, amendment, or repeal
to be made is contained in the Notice of such special meeting provided,
however, that no By-Law shall be made, altered, amended, or repealed so as to
make such By-Law inconsistent with or violative of any provision of the
Certificate of Incorporation.
As amended through January 21, 1997