EXHIBIT 3(ii)
BY-LAWS OF
McDONALD'S CORPORATION
ARTICLE I - OFFICES
Section 1 - Registered Office - The registered office of McDonald's
Corporation shall be maintained at the office of the Corporation's
registered agent, in the City of Dover, in the County of New Castle, in
the State of Delaware. The Corporation's registered agent in Delaware is
The Prentice Hall Corporation System, Inc.
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 - Presiding Officer, Order of Business - The Chairman of the
Board, or in his or her absence, such officer as designated in Article IV
of these By-Laws, shall act as chairman of and preside at any meeting of
the stockholders. The chairman shall determine the order of business and
the procedure at the meeting, including the determination of the date and
time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at such meeting and such other
regulation of the manner of voting and the conduct of discussion as he or
she determines to be reasonably in order. The chairman may adjourn any
meeting of stockholders, whether pursuant to Section 5 of this Article II
or otherwise, and notice of such adjournment need be given only if
required by law.
Section 3 - 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 4 - 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 5 - 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 6 - 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 7 - 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 8 - 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 9 - 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 9,
who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 9.
(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 9, 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 9 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 9, who shall be
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 9. 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 9 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 9 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 9.
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 9 and, if any proposed nomination or business is not in
compliance with this Section 9 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 9, to declare that such defective
proposal shall be disregarded.
(2) For purposes of this Section 9, "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
9, 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 9. Nothing in this Section 9 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 Stockholders, 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 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 election 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) 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.
(B) 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.
(C) 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.
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 tele-
gram, 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 Corporation 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
Corporation 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 Corporation in
capacities, such as outside consultants, attorneys, or business advisors,
shall not be considered by virtue of such service as being employed by
the Corporation. 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 Directors, 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 - Designation - The officers of the Corporation shall be
elected by the Board of Directors and shall include, without limitation,
those officers as described in these By-Laws. The Board of Directors may
also elect such other officers as may be necessary or desirable for the
business of the Corporation or, by resolution, may authorize the Chief
Executive Officer to appoint other officers with such titles, powers and
duties as provided in the resolution. None of the officers, except the
Chief Executive Officer and Chairman of the Board need be Directors. One
person may hold more than one office at the same time provided the duties
of such officer may be properly and consistently performed by one person.
Section 2 - Salaries - The salaries of all officers of the Corporation
shall be fixed by or in a manner provided by the Board of Directors.
Section 3 - 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.
Section 4 - Senior Chairman - The Senior Chairman shall consult with the
Chairman of the Board, Chief Executive Officer, Chief Executive Officer -
McDonald's U.S.A., and Chief Executive Officer - McDonald's 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 5 - 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.
Section 6 - 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 7 - Chief Executive Officer - McDonald's U.S.A. - The Chief
Executive Officer - McDonald's 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 8 - Chief Executive Officer - McDonald's International - The
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 9 - 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.
Section 10 - 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 Inability or failure 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 indemnification.
(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
indemnification 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 Indemni-
fied 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 Indemnified 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. If
delivered by facsimile, notice is given when verification that such
notice was sent is received by the sender. 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 her or their votes are counted for such purpose if:
(1) the material facts as to his or her 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 or her 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 the holders of two-thirds of the
issued and outstanding shares entitled to vote at any annual or special
meeting of the stockholders, provided that notice of the proposed making,
alteration, amendment or repeal is included in the notice of the meeting
at which such action takes place.
The By-Laws of this Corporation may also be made, altered, amended, or
repealed by the affirmative vote of a two-thirds majority of the Board of
Directors at any regular or special meeting of the Board of Directors
provided that notice of the proposed making, alteration, amendment, or
repeal to be made is included in the notice of the meeting at the which
such action takes place. 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 December 19, 1997.