Exhibit 3
BY-LAWS OF
McDONALD'S CORPORATION
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ARTICLE I - OFFICES
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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
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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.
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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 (10) 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 -
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(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.
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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
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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). The
Directors shall be divided into three classes, as nearly equal in number as
possible. Directors 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.
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Section 6 - Committees -
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(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
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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 Chief Executive Officer and shall be called by the Secretary at the
direction of the Chairman of the Board or the Chief Executive Officer or on the
written request of any two (2) Directors on notice to each Director sent at
least twenty-four (24) hours prior to each such meeting. Notice of each such
meeting shall be delivered personally to each Director or sent by telegram,
telex, or electronic mail to such a place as designated from time to time by
each Director or, in the absence of any such designation, to the Director's last
known place of business or residence. Any such meeting shall be held at such
place or places, within or without the State of Delaware, and times as may be
determined by the Directors or as shall be stated in the notice.
Section 8 - Quorum - A majority of the Directors shall constitute a quorum for
the transaction of business and the act of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the Certificate
of Incorporation, the laws of the State of Delaware, or these By-Laws. If at any
meeting of the Board of Directors there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time until a
quorum is obtained and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned.
Section 9 - Compensation - No employee of the 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
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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
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Section 1 - Designation - The Corporation shall have as officers a Chairman of
the Board and a Chief Executive Officer. In addition, the Corporation shall have
such other officers with such titles and duties as shall be stated in these By-
Laws or in a resolution of the Board of Directors which is not inconsistent with
these By-Laws and as may be necessary to enable it to sign instruments and stock
certificates which comply with the Delaware General Corporation Law ("DGCL").
One of the officers of the Corporation shall have the duty to record the
proceedings of the meetings of the stockholders and Directors in a book to be
kept for that purpose. Officers shall be chosen in such manner and shall hold
their offices for such terms as are prescribed in these By-Laws or determined by
the Board of Directors. 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 - 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 to the Chairman of the Board by the Board of Directors.
Section 3 - 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. In the
event of the inability of the Chairman of the Board to act, the Chief Executive
Officer shall preside at all meetings of the stockholders of the Corporation and
of the Board of Directors of the Corporation.
ARTICLE V - INDEMNIFICATION AND INSURANCE
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Section 1 - Right to Indemnification -
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(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 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
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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
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Directors of the Corporation cease for any reason to constitute
at least a majority thereof unless the election of each Director
who was not a Director at the beginning of the period was
approved by a vote of at least two-thirds of the Directors then
still in office who were Directors at the beginning of the
period;
(v) an "Additional Indemnified Person" is a person who is, was, or
had agreed to become an officer, Delegate or employee of the
Corporation and who is not an Indemnified Person; and
(vi) "Good Faith" shall mean with respect to any Additional
Indemnified Person that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal Proceeding, such person had no reasonable cause to
believe such conduct was unlawful.
Section 2 - Expenses - Expenses, including attorneys' fees, incurred by a person
indemnified pursuant to Section 1 of this Article V in defending or otherwise
being involved in a Proceeding shall be paid by the Corporation in advance of
the final disposition of such Proceeding, including any appeal therefrom, upon
receipt of an undertaking (the "Undertaking") by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation; provided, that (A) if a Change of
Control has occurred, such person shall be required to deliver to the
Corporation the Undertaking only if such an undertaking is required under the
DGCL then in effect, and (B) in connection with a Proceeding (or part thereof)
initiated by such person, except a Proceeding authorized by Section 3 of this
Article V, the Corporation shall pay said expenses in advance of final
disposition only if authorization for such Proceeding (or part thereof) was not
denied by the Board of Directors of the Corporation prior to the earlier of (i)
sixty (60) days in the case of an Indemnified Person, or one hundred twenty
(120) days in the case of an Additional Indemnified Person, after receipt of a
request for such advancement accompanied by the Undertaking or (ii) a Change of
Control. A person to whom expenses are advanced pursuant hereto shall not be
obligated to repay pursuant to the Undertaking until the final determination of
any pending Proceeding in a court of competent jurisdiction concerning the right
of such person to be indemnified or the obligation of such person to repay such
expenses.
Section 3 - Protection of Rights - If a claim by an Indemnified Person under
Section 1 of this Article V is not promptly paid in full by the Corporation
after a written claim has been received by the Corporation or if expenses
pursuant to Section 2 of this Article V have not been promptly advanced after a
written request for such advancement by an Indemnified Person (accompanied by
the Undertaking if required by Section 2 of this Article V) has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim or the advancement of
expenses. If successful, in whole or in part, in such suit, such claimant shall
also be entitled to be paid the reasonable expense thereof. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the Undertaking has been tendered to the Corporation (or, if a
Change of Control has occurred, the Undertaking is not required to be tendered
to the Corporation under the DGCL) that indemnification of the claimant is
prohibited by law, but the burden of proving such defense shall be on the
Corporation. If a Change of Control has occurred, a claimant making a claim
under Section 1 of this Article V or seeking to avoid repayment to the
Corporation of expenses advanced pursuant to Section 2 of this Article V shall
have (i) the right, but not the obligation, to have a determination made by
independent legal counsel, at the expense of the Corporation, as to whether
indemnification of the claimant is prohibited by law; and (ii) shall have the
right (A) to select as independent legal counsel to make such determination any
legal counsel designated for such purpose in a resolution adopted by the Board
of Directors that is in full force and effect immediately prior to the Change of
Control or (B), if the Board of Directors has failed to designate any such legal
counsel or all such counsel refuse to make such a determination, to request the
American Arbitration Association, at the expense of the Corporation, to select
an independent legal counsel familiar with matters of the type in dispute to
make such a determination. If a determination has been made in accordance with
the preceding sentence, no determination inconsistent therewith by other legal
counsel, by the Board of Directors, or by stockholders shall be of any force or
effect. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination, if required, prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that indemnification of the claimant is
prohibited, shall be a defense to the action or create a presumption that
indemnification of the claimant is prohibited.
Section 4 - Miscellaneous -
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(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
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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
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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
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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 July 8, 1998.
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