* * * * * * *
AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of May 14, 2002)
* * * * * * *
AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of May 14, 2002)
TABLE OF CONTENTS
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Title Page
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ARTICLE I OFFICES.......................................................1
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Section 1. Principal Office..........................................1
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Section 2. Other Offices.............................................1
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ARTICLE II STOCKHOLDERS..................................................1
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Section 1. Annual Meeting............................................1
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Section 2. Special Meetings..........................................1
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Section 3. Chairman..................................................1
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Section 4 Place of Meeting..........................................1
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Section 5. Notice of Meeting.........................................2
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Section 6. Notice of Adjourned Meeting...............................2
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Section 7. Waiver of Call and Notice of Meeting......................2
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Section 8. Quorum....................................................2
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Section 9. Adjournment; Quorum for Adjourned Meeting.................3
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Section 10. Voting on Matters Other than Election of Directors........3
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Section 11. Voting for Directors......................................3
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Section 12. Voting Lists..............................................3
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Section 13. Voting of Shares..........................................3
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Section 14. Proxies...................................................3
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Section 15. Informal Action by Stockholders. .........................4
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Section 16. Inspectors................................................4
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ARTICLE III BOARD OF DIRECTORS............................................4
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Section 1. General Powers............................................4
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Section 2. Number, Election, Tenure and Qualifications...............5
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Section 3. Chairman..................................................5
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Section 4 Annual Meeting............................................5
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Section 5. Regular Meetings..........................................5
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Section 6. Special Meetings..........................................5
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Section 7. Notice....................................................5
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Section 8. Quorum....................................................6
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Section 9. Adjournment; Quorum for Adjourned Meeting.................6
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Section 10. Manner of Acting..........................................6
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Section 11. Removal...................................................6
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ii
Section 12. Vacancies.................................................6
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Section 13. Compensation..............................................6
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Section 14. Presumption of Assent.....................................6
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Section 15. Informal Action by Board..................................7
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Section 16. Meeting by Telephone, Etc.................................7
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ARTICLE IV OFFICERS.....................................................7
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Section 1. Number....................................................7
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Section 2. Appointment and Term of Office............................7
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Section 3. Resignation...............................................7
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Section 4. Removal...................................................7
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Section 5. Vacancies.................................................8
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Section 6. Duties of Officers........................................8
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Section 7. Salaries..................................................8
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Section 8. Delegation of Duties......................................9
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ARTICLE V EXECUTIVE AND OTHER COMMITTEES................................9
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Section 1. Creation of Committees....................................9
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Section 2. Executive Committee.......................................9
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Section 3 Audit Committee...........................................9
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Section 4 Compensation Committee....................................9
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Section 5 Corporate Governance Committee...........................10
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Section 6 Nominating Committee ....................................10
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Section 7. Other Committees.........................................10
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Section 8. Removal or Dissolution...................................10
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Section 9. Vacancies on Committees..................................10
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Section 10. Meetings of Committees...................................10
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Section 11. Absence of Committee Members.............................10
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Section 12. Quorum of Committees.....................................10
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Section 13. Manner of Acting of Committees...........................10
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Section 14. Minutes of Committees....................................10
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Section 15. Compensation.............................................11
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Section 16. Informal Action..........................................11
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ARTICLE VI INDEMNIFICATION OF DIRECTORS AND OFFICERS....................11
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Section 1. General..................................................11
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Section 2. Actions by or in the Right of the Corporation............12
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Section 3. Determination that Indemnification is Proper.............12
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Section 4. Evaluation and Authorization.............................13
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Section 5. Prepayment of Expenses...................................13
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Section 6. Prompt Consideration.....................................13
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Section 7. Nonexclusivity and Limitations...........................13
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Section 8. Continuation of Indemnification Right....................14
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Section 9. Insurance................................................14
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iii
ARTICLE VII INTERESTED PARTIES...........................................15
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Section 1. General..................................................15
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Section 2. Determination of Quorum..................................15
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Section 3. Approval by Stockholders.................................15
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ARTICLE VIII CERTIFICATES OF STOCK........................................16
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Section 1. Certificates for Shares..................................16
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Section 2. Signatures of Past Officers..............................16
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Section 3. Transfer Agents and Registrars...........................16
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Section 4. Transfer of Shares.......................................16
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Section 5. Lost Certificates........................................17
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ARTICLE IX RECORD DATE..................................................17
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Section 1. Record Date for Stockholder Actions......................17
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Section 2. Record Date for Dividend and Other Distributions.........17
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ARTICLE X DIVIDENDS....................................................18
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ARTICLE XI FISCAL YEAR..................................................18
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ARTICLE XII SEAL.........................................................18
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ARTICLE XIII STOCK IN OTHER CORPORATIONS..................................18
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ARTICLE XIV AMENDMENTS...................................................19
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ARTICLE XV EMERGENCY BY-LAWS............................................19
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Section 1. Scope of Emergency By-laws...............................19
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Section 2. Call and Notice of Meeting...............................19
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Section 3. Quorum and Voting........................................19
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Section 4. Appointment of Temporary Directors.......................19
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Section 5. Modification of Lines of Succession......................20
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Section 6. Change of Principal Office...............................20
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Section 7. Limitation of Liability..................................20
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Section 8. Amendment or Repeal......................................20
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ARTICLE XVI PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION..............20
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iv
AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of May 14, 2002)
ARTICLE I
OFFICES
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Section 1. Principal Office. The principal office of Publix Super
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Markets, Inc. (the "Corporation") shall initially be located in Polk County,
Florida. Its location may thereafter be changed to be at such place within or
without the State of Florida as the Board of Directors of the Corporation (the
"Board of Directors" or the "Board") shall from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such
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other places both within and without the State of Florida as the Board of
Directors or the officers of the Corporation acting within their authority may
from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
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Section 1. Annual Meeting. The annual meeting of the stockholders shall be
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held between January 1 and December 31, inclusive, in each year for the purpose
of electing directors and for the transaction of such other proper business as
may come before the meeting. The exact date of the meeting shall be established
by the Board of Directors from time to time.
Section 2. Special Meetings. Special meetings of the stockholders may be
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called, for any purpose or purposes, by the Board of Directors or the Chairman
of the Board. Special meetings of the stockholders shall be called by the
Chairman of the Board, Chief Executive Officer, the President or the Secretary
if the holders of not less than ten (10) percent of all the votes entitled to be
cast on any issue proposed to be considered at such special meeting sign, date
and deliver to the Secretary one or more written demands for a special meeting,
describing the purpose(s) for which it is to be held. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons. Notice and call of any such special meeting shall state the purpose or
purposes of the proposed meeting, and business transacted at any special meeting
of the stockholders shall be limited to the purposes stated in the notice
thereof.
Section 3. Chairman. The Chairman of the Board shall preside at all
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meetings of the stockholders.
Section 4. Place of Meeting. The Board of Directors may designate any
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place, either within or without the State of Florida, as the place of meeting
for any annual or special meeting of the stockholders. If no designation is
made, the place of meeting shall be the principal office of the Corporation in
the State of Florida.
1
Section 5. Notice of Meeting. Written notice stating the place, day and
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hour of an annual or special meeting and, in the case of a special meeting, the
purpose or purposes for which it is called shall be given no fewer than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting, except that no notice of a meeting need be
given to any stockholders for which notice is not required to be given under
applicable law. Notice may be delivered personally, via United States mail,
telegraph, teletype, facsimile or other electronic transmission, or by private
mail carriers handling nationwide mail services, by or at the direction of the
Chief Executive Officer, the President, the Secretary, the Board of Directors,
or the person(s) calling the meeting. If mailed via United States mail, such
notice shall be deemed to be delivered when deposited in the United States mail,
addressed to the stockholder at the stockholder's address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid. If the
notice is mailed at least thirty (30) days before the date of the meeting, the
mailing may be by a class of United States mail other than first class.
Section 6. Notice of Adjourned Meeting. If a stockholders' meeting is
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adjourned to a different date, time or place, notice need not be given of the
new date, time or place if the new date, time or place is announced at the
meeting before an adjournment is taken; and any business may be transacted at
the adjourned meeting that might have been transacted on the original date of
the meeting. If, however, a new record date for the adjourned meeting is or must
be fixed under law, notice of the adjourned meeting must be given to persons who
are stockholders as of the new record date and who are otherwise entitled to
notice of such meeting.
Section 7. Waiver of Call and Notice of Meeting. Call and notice of any
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stockholders' meeting may be waived by any stockholder before or after the date
and time stated in the notice. Such waiver must be in writing signed by the
stockholder and delivered to the Corporation. Neither the business to be
transacted at nor the purpose of any meeting need be specified in such waiver. A
stockholder's attendance at a meeting (a) waives such stockholder's ability to
object to lack of notice or defective notice of the meeting, unless the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) waives such stockholder's ability
to object to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
stockholder objects to considering the matter when it is presented.
Section 8. Quorum. Except as otherwise provided in these By-laws or in the
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Articles of Incorporation of the Corporation, a majority of the outstanding
shares of the Corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at any meeting of the stockholders. Once a share is
represented for any purpose at a meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting, unless a new record date is or must be set for that adjourned meeting;
and the withdrawal of stockholders after a quorum has been established at a
meeting shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
2
Section 9. Adjournment; Quorum for Adjourned Meeting. If less than a
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majority of the outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally noticed.
Section 10. Voting on Matters Other than Election of Directors. At any
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meeting at which a quorum is present, action on any matter other than the
election of directors shall be approved if the votes cast by the holders of
shares represented at the meeting and entitled to vote on the subject matter
favoring the action exceed the votes cast opposing the action, unless a greater
number of affirmative votes or voting by classes is required by law, the
Articles of Incorporation of the Corporation or these By-laws.
Section 11. Voting for Directors. Directors shall be elected by a
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plurality of the votes cast by the shares entitled to vote at a meeting at which
a quorum is present.
Section 12. Voting Lists. At least ten (10) days prior to each meeting of
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stockholders, the officer or agent having charge of the stock transfer books for
shares of the Corporation shall make a complete list of the stockholders
entitled to vote at such meeting, or any adjournment thereof, with the address
and the number, class and series (if any) of shares held by each. The list shall
be subject to inspection by any stockholder during normal business hours for at
least ten (10) days prior to the meeting. The list also shall be available at
the meeting and shall be subject to inspection by any stockholder at any time
during the meeting or its adjournment. The list shall be prima facie evidence as
to who are the stockholders entitled to examine such list or the transfer books
and to vote at any meeting of the stockholders.
If the requirements of this Section have not been substantially complied
with, the meeting shall be adjourned on the demand of any stockholder (in person
or by proxy) until there has been substantial compliance with the requirements.
If no demand for adjournment is made, failure to comply with the requirements of
this Section does not affect the validity of any action taken at the meeting.
Section 13. Voting of Shares. Except as otherwise provided in the Articles
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of Incorporation of the Corporation, each stockholder entitled to vote shall be
entitled at every meeting of the stockholders to one vote in person or by proxy
on each matter for each share of voting stock held by such stockholder. Such
right to vote shall be subject to the right of the Board of Directors to fix a
record date for voting stockholders as hereinafter provided. Treasury shares,
and shares of stock of the Corporation owned directly or indirectly by another
corporation the majority of the voting stock of which is owned or controlled by
the Corporation, shall not be voted at any meeting and shall not be counted in
determining the total number of outstanding shares.
Section 14. Proxies. At all meetings of stockholders, a stockholder may
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vote by proxy, executed in writing and delivered to the Corporation in the
original or transmitted via telegram, or as a photographic, photostatic or
equivalent reproduction of a written proxy by the stockholder or by the
stockholder's duly authorized attorney-in-fact. No proxy shall be valid after
eleven (11) months from its date, unless the proxy provides for a longer period.
Each proxy shall be filed with the Secretary before or at the time of the
meeting. A proxy may be revoked at the pleasure of the record owner of the
shares to which it relates, unless the proxy provides otherwise. In the event
that a proxy shall designate two or more persons to act as proxies, a majority
of such persons present at the meeting, or, if only one is present, that one,
shall have all of the powers conferred by the proxy upon all the persons so
designated, unless the instrument shall provide otherwise.
3
Section 15. Informal Action by Stockholders. Unless otherwise provided in
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the Articles of Incorporation of the Corporation, any action required or
permitted to be taken at a meeting of the stockholders may be taken by means of
one or more written consents that satisfy the requirements set forth below. In
such event, no meeting, prior notice or formal vote shall be required. To be
effective, a written consent (which may be in one or more counterparts) shall
set forth the action taken and shall be signed by stockholders holding shares
representing not less than the minimum number of votes of each voting group
entitled to vote thereon that would be necessary to authorize or take such
action at a meeting at which all voting groups and shares entitled to vote
thereon were present and voted. No written consent shall be effective unless,
within sixty (60) days of the date of the earliest dated consent delivered to
the Secretary, written consent signed by the number of stockholders required to
take action is delivered to the Secretary. If authorization of an action is
obtained by one or more written consents but less than all stockholders so
consent, then within ten (10) days after obtaining the authorization of such
action by written consents, notice must be given to each stockholder who did not
consent in writing and to each stockholder who is not entitled to vote on the
action. The notice shall fairly summarize the material features of the
authorized action and, if the action be such for which dissenters rights are
provided under the Florida Business Corporation Act, the notice shall contain a
clear statement of the right of stockholders dissenting therefrom to be paid the
fair value of their shares upon compliance with the provisions of the Florida
Business Corporation Act regarding the rights of dissenting stockholders.
Section 16. Inspectors. For each meeting of the stockholders, the Board of
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Directors or the Chairman of the Board may appoint two inspectors to supervise
the voting. If inspectors are so appointed, all questions respecting the
qualification of any vote, the validity of any proxy and the acceptance or
rejection of any vote shall be decided by such inspectors. Before acting at any
meeting, the inspectors shall take an oath to execute their duties with strict
impartiality and according to the best of their ability. If any inspector shall
fail to be present or shall decline to act, the Chairman of the Board shall
appoint another inspector to act in his or her place. In case of a tie vote by
the inspectors on any question, the presiding officer shall decide the issue.
ARTICLE III
BOARD OF DIRECTORS
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Section 1. General Powers. The business and affairs of the Corporation
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shall be managed by its Board of Directors, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by law, the
Articles of Incorporation of the Corporation or these By-laws directed or
required to be exercised or done only by the stockholders.
4
Section 2. Number, Election, Tenure and Qualifications. The number of
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directors of the Corporation shall be not less than three (3) nor more than
fifteen (15). The exact number of directors shall be fixed by resolution adopted
by a vote of a majority of the then authorized number of directors; provided
that no decrease in the number of directors shall have the effect of shortening
the term of any then incumbent director. At each annual meeting of stockholders,
the stockholders shall elect directors to hold office until the next succeeding
annual meeting. Each director shall hold office until his or her term of office
expires and until such director's successor is elected and qualifies, unless
such director sooner dies, resigns or is removed by the stockholders at any
annual or special meeting. It shall not be necessary for directors to be
stockholders or residents of the State of Florida. All directors shall be
natural persons who are 18 years of age or older.
Section 3. Chairman. The Chairman of the Board shall preside at all
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meetings of the Board of Directors.
Section 4. Annual Meeting. Promptly after each annual meeting of
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stockholders, the Board of Directors shall hold its annual meeting for the
purpose of the election of officers and the transaction of such other business
as may come before the meeting. If such meeting is held at the same place as and
immediately following such annual meeting of stockholders and if a majority of
the directors are present at such place and time, no prior notice of such
meeting shall be required to be given to the directors.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may
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be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of Directors may
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be called by the Chairman of the Board, the Chief Executive Officer, the
President or any two directors. The person or persons authorized to call special
meetings of the Board of Directors may fix the place for holding any special
meetings of the Board of Directors called by such person or persons. If no such
designation is made, the place of meeting shall be the principal office of the
Corporation in the State of Florida.
Section 7. Notice. Whenever notice of a meeting is required, written notice
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stating the place, day and hour of the meeting shall be delivered at least two
(2) days prior thereto to each director, either personally, or by first-class
United States mail, telegraph, teletype, facsimile or other form of electronic
communication, or by private mail carriers handling nationwide mail services, to
the director's business address. If notice is given by first-class United States
mail, such notice shall be deemed to be delivered five (5) days after deposited
in the United States mail so addressed with postage thereon prepaid or when
received, if such date is earlier. If notice is given by telegraph, teletype,
facsimile transmission or other form of electronic communication or by private
mail carriers handling nationwide mail services, such notice shall be deemed to
be delivered when received by the director. Any director may waive notice of any
meeting, either before, at or after such meeting. The attendance of a director
at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened and so states at the beginning of the meeting or promptly upon arrival
at the meeting.
5
Section 8. Quorum. A majority of the total number of directors as
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determined from time to time to comprise the Board of Directors shall constitute
a quorum.
Section 9. Adjournment; Quorum for Adjourned Meeting. If less than a
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majority of the total number of directors are present at a meeting, a majority
of the directors so present may adjourn the meeting from time to time without
further notice. At any adjourned meeting at which a quorum shall be present, any
business may be transacted that might have been transacted at the meeting as
originally noticed.
Section 10. Manner of Acting. If a quorum is present when a vote is taken,
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the act of a majority of the directors present at the meeting shall be the act
of the Board of Directors unless otherwise provided in the Articles of
Incorporation of the Corporation.
Section 11. Removal. Any director may be removed by the stockholders, with
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or without cause, at any meeting of the stockholders called expressly for that
purpose. Any such removal shall be without prejudice to the contract rights, if
any, of the person removed.
Section 12. Vacancies. Any vacancy occurring in the Board of Directors,
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including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by the
stockholders, unless otherwise provided in the Articles of Incorporation of the
Corporation. The term of a director elected to fill a vacancy shall expire at
the next following annual meeting of stockholders, and the person elected shall
hold office until such time and until such director's successor is elected and
qualifies, unless such director sooner dies, resigns or is removed by the
stockholders at any annual or special meeting.
Section 13. Compensation. By resolution of the Board of Directors, the
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directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors, a stated salary as directors and/or such
other reasonable compensation as may be determined by the Board from time to
time. No payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 14. Presumption of Assent. A director of the Corporation who is
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present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
such director objects at the beginning of the meeting (or promptly upon his or
her arrival) to the holding of the meeting or the transacting of specified
business at the meeting or such director votes against such action or abstains
from voting in respect of such matter.
6
Section 15. Informal Action by Board. Any action required or permitted to
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be taken by any provisions of law, the Articles of Incorporation of the
Corporation or these By-laws at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if each and every member of the
Board or of such committee, as the case may be, signs a written consent thereto
and such written consent is filed in the minutes of the proceedings of the Board
or such committee, as the case may be. Action taken under this section is
effective when the last director signs the consent, unless the consent specifies
a different effective date, in which case it is effective on the date so
specified.
Section 16. Meeting by Telephone, Etc. Directors or the members of any
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committee thereof shall be deemed present at a meeting of the Board of Directors
or of any such committee, as the case may be, if the meeting is conducted using
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time.
ARTICLE IV
OFFICERS
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Section 1. Number. The officers of the Corporation shall consist of a Chief
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Executive Officer, a Vice Chairman, a President, a Chief Financial Officer, a
Secretary and a Treasurer, each of whom shall be appointed by the Board of
Directors. The Board of Directors may also appoint one or more senior vice
presidents, vice presidents, one or more assistant secretaries and assistant
treasurers and such other officers as the Board of Directors shall deem
appropriate. The same individual may simultaneously hold more than one office in
the Corporation.
Section 2. Appointment and Term of Office. The officers of the Corporation
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shall be appointed annually by the Board of Directors at its annual meeting. If
the appointment of officers shall not be made at such meeting, such appointment
shall be made as soon thereafter as is convenient. Each officer shall hold
office until such officer's successor is appointed and qualifies, unless such
officer sooner dies, resigns or is removed by the Board. The appointment of an
officer does not itself create contract rights. The failure to elect a Chief
Executive Officer, a Vice Chairman, a President, a Chief Financial Officer, a
Secretary or a Treasurer shall not affect the existence of the Corporation.
Section 3. Resignation. An officer may resign at any time by delivering
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notice to the Corporation. A resignation shall be effective when the notice is
delivered unless the notice specifies a later effective date. An officer's
resignation shall not affect the Corporation's contract rights, if any, with the
officer.
Section 4. Removal. The Board of Directors may remove any officer at any
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time with or without cause. An officer's removal shall not affect the officer's
contract rights, if any, with the Corporation.
7
Section 5. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or otherwise may be filled by the Board
of Directors for the unexpired portion of the term.
Section 6. Duties of Officers.
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(a) The Chief Executive Officer of the Corporation shall, subject to
the direction of the Board, have general charge of the business and affairs of
the Corporation.
(b) The Vice Chairman shall in the absence, sickness or other
disability of the Chairman of the Board of the Corporation preside over meetings
of the Board of Directors and shall assume such other duties as may be assigned
from time to time by the Chief Executive Officer. (c) The President shall be the
chief retail officer of the Corporation and shall assume such other duties as
may be assigned from time to time by the Chief Executive Officer.
(d) The Chief Financial Officer shall (i) keep and maintain adequate
and correct accounts of the Corporation's properties and business transactions,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares; (ii) render to the Chief Executive Officer
and the Board of Directors, upon request, an account of the financial condition
of the Corporation; (iii) prepare, or cause to be prepared, financial statements
of the Corporation, including financial statements to be included in the annual
report to the stockholders of the Corporation; and (iv) oversee the valuation of
the Corporation's shares as may be required by law.
(e) The Secretary shall (i) be responsible for preparing minutes of
the directors' and stockholders' meetings and for authenticating records of the
Corporation, (ii) see that all notices are duly given in accordance with the
provisions of the Articles of Incorporation of the Corporation, these By-laws or
as required by law, (iii) maintain custody of the corporate records and the
corporate seal, and (iv) have general charge of the stock transfer books of the
Corporation.
(f) The Treasurer shall (i) have charge and custody of and be
responsible for all funds of the Corporation and (ii) receive and give receipts
for monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies or
other depositaries as shall be selected by the Corporation.
(g) Subject to the foregoing, the officers of the Corporation shall
have such powers and duties as ordinarily pertain to their respective offices
and such additional powers and duties specifically conferred by law, the
Articles of Incorporation of the Corporation and these By-laws, or as may be
assigned to them from time to time by the Board of Directors or an officer
authorized by the Board of Directors to prescribe the duties of other officers.
Section 7. Salaries. The salaries of the officers shall be fixed from time
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to time by the Board of Directors or as delegated by the Board of Directors, and
no officer shall be prevented from receiving a salary by reason of the fact that
the officer is also a director of the Corporation.
8
Section 8. Delegation of Duties. In the absence or disability of any
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officer of the Corporation, or for any other reason deemed sufficient by the
Board of Directors, the Board may delegate the powers or duties of such officer
to any other officer or to any director for the time being.
ARTICLE V
EXECUTIVE, AUDIT, COMPENSATION, CORPORATE GOVERNANCE, NOMINATING
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AND OTHER COMMITTEES
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Section 1. Creation of Committees. The Board of Directors may designate an
----------------------
Executive Committee and one or more other committees. Each committee so
designated shall consist of two (2) or more of the directors of the Corporation.
Section 2. Executive Committee. The Executive Committee, if there shall be
-------------------
one, shall have, and may exercise, except to the extent otherwise provided in
the resolution of the Board of Directors creating such Executive Committee, such
powers of the Board of Directors as can be lawfully delegated by the Board.
Included solely for information purposes, the following is a list of the actions
that, under Florida law in effect at the time of the adoption of these By-laws,
may not be delegated to a committee, but the list shall be deemed automatically
revised without further action by the Board of Directors or the stockholders of
this Corporation upon and to the extent of any amendment to such law:
(a) approve or recommend to stockholders actions or proposals
required by law to be approved by stockholders;
(b) fill vacancies on the Board of Directors or any committee of the
Board;
(c) adopt, amend or repeal these By-laws;
(d) authorize or approve the reacquisition of shares unless pursuant
to a general formula or method specified by the Board of Directors; or
(e) authorize or approve the issuance or sale of shares, or any
contract to sell shares, or designate the terms of a series or class of shares.
Section 3. Audit Committee. The Audit Committee has responsibility to the
---------------
Board of Directors for assessing the processes related to the Corporation's
risks and control environment, overseeing the financial reporting and evaluating
the internal and independent audit processes.
Section 4. Compensation Committee. The Compensation Committee reviews and
-----------------------
sets the salary and benefits structure of the Corporation with respect to its
executive management and any other corporate officers whose compensation is
disclosed in the Corporation's annual proxy.
9
Section 5. Corporate Governance Committee. The Corporate Governance
--------------------------------
Committee has responsibility for reviewing and reporting to the Board of
Directors on matters of corporate governance such as practices, policies and
procedures affecting directors and the Board's operations and effectiveness.
Section 6. Nominating Committee. The Nominating Committee has
----------------------
responsibility for reviewing and reporting to the Board of Directors on matters
of Board nominations. This includes reviewing potential candidates and proposing
nominees to the Board of Directors.
Section 7. Other Committees. Such other committees, to the extent provided
----------------
in the resolution or resolutions creating them, shall have such functions and
may exercise such powers of the Board of Directors as can be lawfully delegated
by the Board. Notwithstanding the foregoing, no committee shall have the
authority to take any action listed in subsections (a) through (e), inclusive,
of Section 2 of this Article V.
Section 8. Removal or Dissolution. Any Committee of the Board of Directors
----------------------
may be dissolved by the Board at any meeting; and any member of such committee
may be removed by the Board of Directors with or without cause. Such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 9. Vacancies on Committees. Vacancies on any committee of the Board
-----------------------
of Directors shall be filled by the Board of Directors at any meeting.
Section 10. Meetings of Committees. Regular meetings of any committee of
----------------------
the Board of Directors may be held without notice at such time and at such place
as shall from time to time be determined by such committee. Special meetings of
any such committee may be called by any member thereof upon two (2) days notice
of the date, time and place of the meeting given to each of the other members of
such committee, or on such shorter notice as may be agreed to in writing by each
of the other members of such committee. Notice shall be given either personally
or in the manner provided in Section 7 of Article III of these By-laws
(pertaining to notice for directors' meetings).
Section 11. Absence of Committee Members. The Board of Directors may
------------------------------
designate one or more directors as alternate members of any committee of the
Board of Directors, who may replace at any meeting of such committee any member
not able to attend.
Section 12. Quorum of Committees. At all meetings of committees of the
---------------------
Board of Directors, a majority of the total number of members of the committee
as determined from time to time shall constitute a quorum for the transaction of
business.
Section 13. Manner of Acting of Committees. If a quorum is present when a
-------------------------------
vote is taken, the act of a majority of the members of any committee of the
Board of Directors present at the meeting shall be the act of such committee.
Section 14. Minutes of Committees. Each committee of the Board of Directors
---------------------
shall keep regular minutes of its proceedings and report the same to the Board
of Directors when requested.
10
Section 15. Compensation. Members of any committee of the Board of
------------
Directors may be paid compensation in accordance with the provisions of Section
13 of Article III of these By-laws (pertaining to compensation of directors).
Section 16. Informal Action. Any committee of the Board of Directors may
----------------
take such informal action and hold such informal meetings as allowed by the
provisions of Sections 15 and 16 of Article III of these By-laws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 1. General.
--------
(a) To the fullest extent permitted by law and consistent with the
principles set forth in Section 1(c) below, the Corporation shall indemnify any
person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or other type of proceeding (other
than an action by or in the right of the Corporation), whether civil, criminal,
administrative, investigative or otherwise, and whether formal or informal, by
reason of the fact that such person is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, trustee or fiduciary of another corporation, partnership,
joint venture, trust (including without limitation an employee benefit trust),
or other enterprise.
(b) To the fullest extent permitted by law and consistent with the
principles set forth in Section 1(c) below, the Corporation shall be entitled
but shall not be obligated to indemnify any person who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (other than an action by or in the right of the
Corporation), whether civil, criminal, administrative, investigative or
otherwise, and whether formal or informal, by reason of the fact that such
person is or was an employee or agent of the Corporation or is or was serving at
the request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(c) Any person for whom indemnification is required or authorized
under Section 1(a) or Section 1(b) above shall be indemnified against all
liabilities, judgments, amounts paid in settlement, penalties, fines (including
an excise tax assessed with respect to any employee benefit plan) and expenses
(including attorneys' fees, paralegals' fees and court costs) actually and
reasonably incurred in connection with any such action, suit or other
proceeding, including any appeal thereof. Indemnification shall be available
only if the person to be indemnified 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 action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The termination
of any such action, suit or other proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner that such person reasonably believed to be in, or not opposed to, the
best interests of the Corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
11
Section 2. Actions by or in the Right of the Corporation.
---------------------------------------------
(a) To the fullest extent permitted by law and consistent with the
principles set forth in Section 2(c) below, the Corporation shall indemnify any
person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or other type of proceeding (as
further described in Section 1 of this Article VI) by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer, trustee or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise.
(b) To the fullest extent permitted by law and consistent with the
principles set forth in Section 2(c) below, the Corporation shall be entitled
but shall not be obligated to indemnify any person who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (as further described in Section 1 of this
Article VI) by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was an employee or agent of
the Corporation or is or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust
(including without limitation an employee benefit trust) or other enterprise.
(c) Any person for whom indemnification is required or authorized
under Section 2(a) or Section 2(b) above shall be indemnified against expenses
(including attorneys' fees, paralegals' fees and court costs) and amounts paid
in settlement not exceeding, in the judgment of the Board of Directors, the
estimated expenses of litigating the action, suit or other proceeding to
conclusion, that are actually and reasonably incurred in connection with the
defense or settlement of such action, suit or other proceeding, including any
appeal thereof. Indemnification shall be available only if the person to be
indemnified 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.
Notwithstanding the foregoing, no indemnification shall be made under this
Section 2 in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable unless, and only to the extent that, the court
in which such action, suit or other proceeding was brought, or any other court
of competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such expenses
that such court shall deem proper.
Section 3. Determination that Indemnification is Proper. Indemnification
---------------------------------------------
pursuant to Section 1 or Section 2 of this Article VI, unless otherwise made
pursuant to a determination by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that the indemnification is
proper in the circumstances because the indemnified person has met the
applicable standard of conduct set forth in Section 1 or Section 2 of this
Article VI. Such determination shall be made under one of the following
procedures:
12
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit or other
proceeding to which the indemnification relates;
(b) if such a quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the Board of Directors (the
designation being one in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to such
action, suit or other proceeding;
(c) by independent legal counsel (i) selected by the Board of
Directors in accordance with the requirements of subsection (a) or by a
committee designated under subsection (b) or (ii) if a quorum of the directors
cannot be obtained and a committee cannot be designated, selected by majority
vote of the full Board of Directors (the vote being one in which directors who
are parties may participate); or
(d) by the stockholders by a majority vote of a quorum consisting of
stockholders who were not parties to such action, suit or other proceeding or,
if no such quorum is obtainable, by a majority vote of stockholders who were not
parties to such action, suit or other proceeding.
Section 4. Evaluation and Authorization. Evaluation of the reasonableness
-----------------------------
of expenses and authorization of indemnification shall be made in the same
manner as is prescribed in Section 3 of this Article VI for the determination
that indemnification is permissible; provided, however, that if the
determination as to whether indemnification is permissible is made by
independent legal counsel, the persons who selected such independent legal
counsel shall be responsible for evaluating the reasonableness of expenses and
may authorize indemnification.
Section 5. Prepayment of Expenses. Expenses (including attorneys' fees,
----------------------
paralegals' fees and court costs) incurred by a director or officer in defending
a civil or criminal action, suit or other proceeding referred to in Section 1 or
Section 2 of this Article VI may, in the discretion of this Corporation, to the
full extent permitted by law, be paid by the Corporation in advance of the final
disposition thereof. Any such payment shall be made only upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
such person is ultimately found not to be entitled to indemnification by the
Corporation pursuant to this Article VI.
Section 6. Prompt Consideration. Any request for indemnification or
---------------------
advancement of expenses shall be promptly considered by the Corporation.
Section 7. Nonexclusivity and Limitations. The indemnification and
--------------------------------
advancement of expenses provided pursuant to this Article VI shall not be deemed
exclusive of any other rights to which a person may be entitled under any law,
By-law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity and as to action
in any other capacity while holding office with the Corporation. Such
indemnification and advancement of expenses shall continue as to any person who
has ceased to be a director or officer and shall inure to the benefit of such
person's heirs and personal representatives. The Board of Directors may, at any
time, approve indemnification of or advancement of expenses to any other person
that the Corporation has the power by law to indemnify. In all cases not
specifically provided for in this Article VI, indemnification or advancement of
expenses shall not be made to the extent that such indemnification or
advancement of expenses is expressly prohibited by law.
13
Section 8. Continuation of Indemnification Right.
-------------------------------------
(a) The right of indemnification and advancement of expenses under
this Article VI for directors and officers shall be a contract right inuring to
the benefit of the directors and officers entitled to be indemnified hereunder.
No amendment or repeal of this Article VI shall adversely affect any right of
such director or officer existing at the time of such amendment or repeal.
Indemnification and advancement of expenses as provided for in this Article VI
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person.
(b) Unless expressly otherwise provided when authorized or ratified
by this Corporation, indemnification and advancement of expenses that have been
specifically authorized and approved by the Corporation for a particular
employee or agent shall continue as to a person who has ceased to be an employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
(c) For purposes of this Article VI, the term "corporation"
includes, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director or officer of a constituent
corporation, or is or was serving at the request of a constituent corporation as
a director, officer, trustee or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise, is in the same position under this
Article VI with respect to the resulting or surviving corporation as such person
would have been with respect to such constituent corporation if its separate
existence had continued.
Section 9. Insurance. The Corporation may purchase and maintain insurance
---------
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or who is or was serving at the request of the Corporation as a
director, officer, trustee, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Such insurance may cover
any liability asserted against such person and incurred by such person in any
such capacity or arising out of such person's status as such, whether or not the
Corporation is obligated to or would have the power to indemnify such person
against the liability under Section 1 or Section 2 of this Article VI.
14
ARTICLE VII
INTERESTED PARTIES
------------------
Section 1. General. No contract or other transaction between the
-------
Corporation and any one or more of its directors or any other corporation, firm,
association or entity in which one or more of its directors are directors or
officers or are financially interested shall be either void or voidable because
of such relationship or interest, because such director or directors were
present at the meeting of the Board of Directors or of a committee thereof that
authorizes, approves or ratifies such contract or transaction, or because such
director's or directors' votes are counted for such purpose, as long as one or
more of the following requirements is satisfied:
(a) the fact of such relationship or interest is disclosed or known
to the Board of Directors or committee that authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested directors;
(b) the fact of such relationship or interest is disclosed or known
to the stockholders entitled to vote on the matter, and they authorize, approve
or ratify such contract or transaction by vote or written consent; or
(c) the contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board of Directors, a committee
thereof or the stockholders.
Section 2. Determination of Quorum. Common or interested directors may be
-----------------------
counted in determining the presence of a quorum at a meeting of the Board of
Directors or a committee thereof that authorizes, approves or ratifies a
contract or transaction referred to in Section 1 of this Article VII.
Section 3. Approval by Stockholders. For purposes of Section 1(b) of this
-------------------------
Article VII, a conflict of interest transaction shall be authorized, approved or
ratified if it receives the vote of a majority of the shares entitled to be
counted under this Section 3. Shares owned by or voted under the control of a
director who has a relationship or interest in the transaction described in
Section 1 of this Article VII may not be counted in a vote of stockholders to
determine whether to authorize, approve or ratify a conflict of interest
transaction under Section 1(b) of this Article VII. The vote of the shares owned
by or voted under the control of a director who has a relationship or interest
in the transaction described in Section 1 of this Article VII shall be counted,
however, in determining whether the transaction is approved under other sections
of these By-laws and applicable law. A majority of those shares that would be
entitled, if present, to be counted in a vote on the transaction under this
Section 3 shall constitute a quorum for the purpose of taking action under this
Section 3.
15
ARTICLE VIII
CERTIFICATES OF STOCK
---------------------
Section 1. Certificates for Shares. Shares may but need not be represented
-----------------------
by certificates. The rights and obligations of stockholders shall be identical
whether or not their shares are represented by certificates. If shares are
represented by certificates, each certificate shall be in such form as the Board
of Directors may from time to time prescribe and shall be signed (either
manually or in facsimile) by the Chairman of the Board, the Chief Executive
Officer or the President and may be signed (either manually or in facsimile) by
the Secretary or an Assistant Secretary and/or sealed with the seal of the
Corporation or its facsimile. Each certificate shall set forth the holder's name
and the number of shares represented by the certificate, and shall state such
other matters as may be required by law. The certificates shall be numbered and
entered on the books of the Corporation as they are issued. If shares are not
represented by certificates, then, within a reasonable time after issue or
transfer of shares without certificates, the Corporation shall send the
stockholder a written statement in such form as the Board of Directors may from
time to time prescribe, certifying as to the number of shares owned by the
stockholder and as to such other information as would have been required to be
on certificates for such shares.
If and to the extent the Corporation is authorized to issue shares of more
than one class or more than one series of any class, every certificate
representing shares shall set forth or fairly summarize upon the face or back of
the certificate, or shall state that the Corporation will furnish to any
stockholder upon request and without charge a full statement of:
(a) the designations, relative rights, preferences and limitations
of the shares of each class or series authorized to be issued;
(b) the variations in rights, preferences and limitations between
the shares of each such series, if the Corporation is authorized to issue any
preferred or special class in series insofar as the same have been fixed and
determined; and
(c) the authority of the Board of Directors to fix and determine the
variations, relative rights and preferences of future series.
Section 2. Signatures of Past Officers. If the person who signed (either
----------------------------
manually or in facsimile) a share certificate no longer holds office when the
certificate is issued, the certificate shall nevertheless be valid.
Section 3. Transfer Agents and Registrars. The Board of Directors may, in
-------------------------------
its discretion, appoint responsible banks or trust companies in such city or
cities as the Board may deem advisable from time to time to act as transfer
agents and registrars of the stock of the Corporation. When such appointments
shall have been made, no stock certificate shall be valid until countersigned by
one of such transfer agents and registered by one of such registrars.
Section 4. Transfer of Shares. Transfers of shares of the Corporation shall
------------------
be made upon its books by the holder of the shares in person or by the holder's
lawfully constituted representative, upon surrender of the certificate of stock
for cancellation if such shares are represented by a certificate of stock or by
delivery to the Corporation of such evidence of transfer as may be required by
the Corporation if such shares are not represented by certificates. The person
in whose name shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes; and the Corporation
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of the State of
Florida.
16
Section 5. Lost Certificates. The Board of Directors may direct a new
------------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation and alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or the owner's
legal representative, to pay a reasonable charge for issuing the new
certificate, to advertise the matter in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE IX
RECORD DATE
-----------
Section 1. Record Date for Stockholder Actions. The Board of Directors is
------------------------------------
authorized from time to time to fix in advance a date as the record date for the
determination of the stockholders entitled to notice of and to vote at any
meeting of the stockholders and any adjournment thereof (unless a new record
date must be established by law for such adjourned meeting), or of the
stockholders entitled to give such consent or take such action, as the case may
be. In no event may a record date so fixed by the Board of Directors precede the
date on which the resolution establishing such record date is adopted by the
Board of Directors; and such record date may not be more than seventy (70) nor
less than ten (10) days before the date of any meeting of the stockholders,
before a date in connection with the obtaining of the consent of stockholders
for any purpose, or before the date of any other action requiring a
determination of the stockholders. Only those stockholders listed as
stockholders of record as of the close of business on the date so fixed as the
record date shall be entitled to notice of and to vote at such meeting and any
adjournment thereof, or to exercise such rights or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. If the Board of
Directors fails to establish a record date as provided herein, the record date
shall be deemed to be the date ten (10) days prior to the date of the
stockholders' meeting.
Section 2. Record Date for Dividend and Other Distributions. The Board of
-------------------------------------------------
Directors is authorized from time to time to fix in advance a date as the record
date for the determination of the stockholders entitled to receive a dividend or
other distribution. Only those stockholders listed as stockholders of record as
of the close of business on the date so fixed as the record date shall be
entitled to receive the dividend or other distribution, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If the Board of Directors fails to
establish a record date as provided herein, the record date shall be deemed to
be the date of authorization of the dividend or other distribution.
17
ARTICLE X
DIVIDENDS
---------
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of capital stock in the manner and
upon the terms and conditions provided by the Articles of Incorporation of the
Corporation and by law. Subject to the provisions of the Articles of
Incorporation of the Corporation and to law, dividends may be paid in cash or
property, including shares of stock or other securities of the Corporation.
ARTICLE XI
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be the period selected by the
Board of Directors as the fiscal year. Unless and until changed by the Board of
Directors, the fiscal year of the Corporation shall end on the last Saturday of
each year.
ARTICLE XII
SEAL
----
The corporate seal shall have the name of the Corporation and the word
"SEAL" inscribed thereon. It may be a facsimile, engraved, printed or impression
seal.
ARTICLE XIII
STOCK IN OTHER CORPORATIONS
---------------------------
Shares of stock in other corporations held by the Corporation shall be
voted by such officer or officers or other agent of the Corporation as the Board
of Directors shall from time to time designate for the purpose or by a proxy
thereunto duly authorized by said Board.
18
ARTICLE XIV
AMENDMENTS
----------
These By-laws may be altered, amended or repealed and new By-laws may be
adopted either by the Board of Directors or by the holders of a majority of the
issued and outstanding shares of stock of the Corporation entitled to vote;
provided, however, that the Board of Directors may not alter, amend or repeal
any By-law adopted by the stockholders if the stockholders specifically provided
that the By-law is not subject to amendment or repeal by the Board.
ARTICLE XV
EMERGENCY BY-LAWS
-----------------
Section 1. Scope of Emergency By-laws. The emergency By-laws provided in
---------------------------
this Article XV shall be operative during any emergency, notwithstanding any
different provision set forth in the preceding Articles hereof; provided,
however, that to the extent not inconsistent with the provisions of this Article
XV and the emergency By-laws, the By-laws provided in the preceding Articles
shall remain in effect during such emergency. For purposes of the emergency
By-law provisions of this Article XV, an emergency shall exist if a quorum of
the Corporation's directors cannot readily be assembled because of some
catastrophic event. Upon termination of the emergency, these emergency By-laws
shall cease to be operative.
Section 2. Call and Notice of Meeting. During any emergency, a meeting of
--------------------------
the Board of Directors may be called by any officer or director of the
Corporation. Notice of the date, time and place of the meeting shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any available means of communication. Such notice shall be given at
such time in advance of the meeting as circumstances permit in the judgment of
the person calling the meeting.
Section 3. Quorum and Voting. At any such meeting of the Board of
-------------------
Directors, a quorum shall consist of any one or more directors, and the act of
the majority of the directors present at such meeting shall be the act of the
Corporation.
Section 4. Appointment of Temporary Directors.
----------------------------------
(a) The director or directors who are able to be assembled at a
meeting of directors during an emergency may assemble for the purpose of
appointing, if such directors deem it necessary, one or more temporary directors
(the "Temporary Directors") to serve as directors of the Corporation during the
term of any emergency.
(b) If no directors are able to attend a meeting of directors during
an emergency, then such stockholders as may reasonably be assembled shall have
the right, by majority vote of those assembled, to appoint Temporary Directors
to serve on the Board of Directors until the termination of the emergency.
19
(c) If no stockholders can reasonably be assembled in order to
conduct a vote for Temporary Directors, then the Chairman of the Board or his or
her successor as determined under an emergency succession plan adopted by the
Board of Directors under Section 5 of this Article XV shall be deemed a
Temporary Director of the Corporation, and such Chairman of the Board or his or
her successor, as the case may be, shall have the right to appoint additional
Temporary Directors to serve with him or her on the Board of Directors of the
Corporation during the term of the emergency.
(d) Temporary Directors shall have all of the rights, duties and
obligations of directors appointed pursuant to Article III hereof; provided,
however, that a Temporary Director may be removed from the Board of Directors at
any time by the person or persons responsible for appointing such Temporary
Director, or by vote of the majority of the stockholders present at any meeting
of the stockholders during an emergency. In any event, the Temporary Director
shall automatically be deemed to have resigned from the Board of Directors upon
the termination of the emergency in connection with which the Temporary Director
was appointed.
Section 5. Modification of Lines of Succession. Either before or during any
-----------------------------------
emergency, the Board of Directors may provide, and from time to time modify,
lines of succession in the event that during such an emergency any or all
officers or agents of the Corporation shall for any reason be rendered incapable
of discharging their duties.
Section 6. Change of Principal Office. The Board of Directors may, either
---------------------------
before or during any such emergency, and effective during such emergency, change
the principal office of the Corporation or designate several alternative head
offices or regional offices, or authorize the officers of the Corporation to do
so.
Section 7. Limitation of Liability. No officer, director or employee acting
-----------------------
in accordance with these emergency By-laws during an emergency shall be liable
except for willful misconduct.
Section 8. Amendment or Repeal. These emergency By-laws shall be subject to
-------------------
amendment or repeal by further action of the Board of Directors or by action of
the stockholders, but no such amendment or repeal shall modify the provisions of
Section 7 above with regard to actions taken prior to the time of such amendment
or repeal. Any amendment of these emergency By-laws may make any further or
different provision that may be practical or necessary under the circumstances
of the emergency.
ARTICLE XVI
PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION
-----------------------------------------------
Any provision of the Articles of Incorporation of this Corporation shall,
subject to law, control and take precedence over any provision of these By-laws
inconsistent therewith.
20