BY-LAWS OF THE COCA-COLA COMPANY, AS AMENDED AND RESTATED THROUGH OCTOBER 19, 2006
Published on October 20, 2006
EXHIBIT
99.1
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BY-LAWS
OF THE COCA-COLA COMPANY
|
|
AS
AMENDED AND RESTATED THROUGH OCTOBER 19,
2006
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ARTICLE
I
SHAREHOLDERS:
Section
1.
Place, Date and Time of Holding Annual Meetings.
Annual
meetings of shareholders shall be held at such place, date and time as
shall be
designated from time to time by the Board of Directors. In the absence
of a
resolution adopted by the Board of Directors establishing such place, date
and
time, the annual meeting shall be held at 1209 Orange Street, Wilmington,
Delaware, on the third Wednesday in April of each year at 9:00 A.M. (local
time).
Section
2. Voting.
Each
outstanding share of common stock of the Company is entitled to one vote
on each
matter submitted to a vote. Except
as
provided below, all actions
shall be
authorized by a majority of the votes cast unless a greater vote is required
by
the laws of Delaware. A shareholder may vote in person or by proxy authorized
by
an instrument in writing or by a transmission permitted by law filed in
accordance with the procedures established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this section may be substituted or used in lieu of
the
original writing or the transmission that could be used, provided that
such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
A
nominee for
director
election
shall
be
elected by the affirmative
vote
of
a
majority
of the votes cast with respect to such
nominee
at any
meeting for the election of directors at which a quorum is present, provided
that if the number of nominees exceeds the number of directors to be elected,
the directors shall be elected by a plurality of the votes of the shares
represented in person or by proxy at any such meeting and entitled to vote
on
the election of directors. In an election of directors, a majority of the
votes
cast means that the number of votes cast “for” a nominee must exceed 50% of the
votes cast with respect to such nominee (excluding abstentions). If a director
is not elected, the director shall promptly tender his or her resignation
to the
Board of Directors. The Committee on Directors and Corporate Governance
will
make a recommendation to the Board of Directors on whether to accept or
reject
the resignation, or whether other action should be taken. The Board of
Directors
will act on the resignation taking into account the recommendation of the
Committee on Directors and Corporate Governance and publicly disclose its
decision and the rationale behind it within 100 days from the date of the
certification of the election results. The director who tenders his or
her
resignation will not participate in the decisions of the Committee on Directors
and Corporate Governance or the Board of Directors that concern such
resignation. If a director’s resignation is accepted by the Board of Directors
pursuant to this By-Law, or if a nominee for director is not elected and
the
nominee is not an incumbent director, then the Board of Directors, in its
sole
discretion, may fill any resulting vacancy pursuant to the provisions of
Article
VI, Section 2 or may decrease the size of the Board of Directors pursuant
to the
provisions of Article II, Section 1.
Section
3. Quorum.
The
holders of a majority of the issued and outstanding shares of capital stock
of
the Company, present in person or represented by proxy, shall constitute
a
quorum at all meetings of shareholders. Where a separate vote by a class
or
classes or series is required, a majority of the shares of such class or
classes
or series present in person or represented by proxy shall constitute a
quorum
entitled to take action with respect to that vote on that matter.
Section
4. Adjournment
of Meetings.
In the
absence of a quorum or for any other reason, the chairman of the meeting
may
adjourn the meeting from time to time. If the adjournment is not for more
than
thirty days, the adjourned meeting may be held without notice other than
an
announcement at the meeting. If the adjournment is for more than thirty
days, or
if a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record entitled
to vote
at such meeting. At any such adjourned meeting at which a quorum is present,
any
business may be transacted which might have been transacted at the meeting
originally called.
Section
5. Special
Meetings.
Special
meetings of the shareholders for any purpose or purposes may be called
by the
Board of Directors, the Chairman of the Board of Directors or the President.
Special meetings shall be held at the place, date and time fixed by the
Secretary.
Section
6. Notice
of Shareholders Meeting.
Notice,
stating the place, date, hour and purpose of the annual or special meeting
shall
be given by the Secretary not less than ten nor more than sixty days before
the
date of the meeting to each shareholder entitled to vote at such
meeting.
Section
7. Organization.
The
Chairman of the Board of Directors shall preside at all meetings of
shareholders. In the absence of, or in case of a vacancy in the office
of, the
Chairman of the Board of Directors, the President, or in his absence or
in the
event that the Board of Directors has not selected a President, any Senior
Executive Vice President, Executive Vice President, Senior Vice President
or
Vice President in order of seniority as specified in this sentence, and,
within
each classification of office in order of seniority in time in that office,
shall preside. The Secretary of the Company shall act as secretary at all
meetings of the shareholders and in the Secretary's absence, the chairman
of the
meeting may appoint a secretary.
The
Board
of Directors of the Company shall be entitled to make such rules or regulations
for the conduct of meetings of shareholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations of the
Board of
Directors, if any, the chairman of the meeting shall have the right and
the
authority to prescribe such rules, regulations and procedures and to do
all such
acts as, in the judgment of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing (i) an agenda or order of business for the meeting, (ii) rules
and
procedures for maintaining order at the meeting and the safety of those
present,
(iii) limitations on participation in such meetings to shareholders of
record of
the Company and their duly authorized and constituted proxies, and such
other
persons as the chairman of the meeting shall permit, (iv) restrictions
on
entries to the meeting after the time affixed for the commencement thereof,
(v)
limitations on the time allotted to the questions or comments by participants
and (vi) regulation of the opening and closing of the polls for balloting
and
matters which are to be voted on by ballot. Unless and to the extent determined
by the Board of Directors or the chairman of the meeting, meetings of
shareholders shall not be required to be held in accordance with rules
of
parliamentary procedure.
Section
8. Inspectors
of Election.
All
votes by ballot at any meeting of shareholders shall be conducted by such
number
of inspectors of election as are appointed for that purpose by the Company.
The
Company may designate one or more alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting
of
stockholders, the person presiding at the meeting may, and to the extent
required by law, shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his or her
2
duties,
shall take and sign an oath faithfully to execute the duties of inspector
with
strict impartiality and according to the best of his or her ability. Every
vote
taken by ballots shall be counted by a duly appointed inspector or
inspectors.
Section
9. Record
Date.
The
Board of Directors, in order to determine the shareholders entitled to
notice of
or to vote at any meeting of shareholders or any adjournment thereof, or
entitled to take action by written consent, 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, shall fix in advance a record
date
which shall not be more than sixty nor less than ten days before the date
of
such meeting, nor more than sixty days prior to any other action and in
such
case only such shareholders as shall be shareholders of record on the date
so
fixed, shall be entitled to such notice of or to vote at such meeting or
any
adjournment thereof, or entitled to take action by written consent, or
be
entitled to receive payment of any such dividend or other distribution
or
allotment of any rights or be entitled to exercise any such rights in respect
of
stock or to take any such other lawful action, as the case may be,
notwithstanding any transfer of any stock on the books of the Company after
any
such record date fixed as aforesaid.
Section
10. Notice
of Shareholder Proposals.
At any
annual or special meeting of shareholders, only such business shall be
conducted
as shall have been properly brought before the meeting. To be properly
brought
before an annual or special meeting, business must be: (A) specified in
the
notice of meeting (or any supplement thereto) given by or at the direction
of
the Board of Directors, (B) otherwise properly brought before the meeting
by or
at the direction of the Board of Directors, or (C) otherwise properly brought
before the meeting by a shareholder. In order for business to be properly
brought before an annual meeting by a shareholder, the shareholder must
have
given timely notice thereof in writing to the Secretary of the Company
and such
proposal must be a proper matter for shareholder action under the General
Corporation Law of the State of Delaware. To be timely, a shareholder's
notice
must be delivered to or mailed and received at the principal executive
offices
of the Company not later than the close of business on the one hundred
twentieth
(120th) calendar day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event no annual meeting
was held
in the previous year or the date of the annual meeting has been changed
by more
than thirty (30) days notice by the shareholder to be timely must be so
received
not later than the close of business on the later of one hundred twenty
(120)
calendar days in advance of such annual meeting or ten (10) calendar days
following the date on which public announcement of the date of the meeting
is
first made. A shareholder's notice to the Secretary shall set forth as
to each
matter the shareholder proposes to bring before the annual meeting: (i)
a brief
description of the business desired to be brought before the annual meeting
and
the reasons for conducting such business at the annual meeting, (ii) the
name
and address, as they appear on the Company's books, of the shareholder
proposing
such business, (iii) the class and number of shares of the Company which
are
beneficially owned by the shareholder, (iv) any material interest of the
shareholder in such business, and (v) any other information that is required
to
be provided by the shareholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as a
proponent to a shareholder proposal. Notwithstanding the foregoing, in
order to
include information with respect to a shareholder proposal in the proxy
statement and form of proxy for a shareholders' meeting, shareholders must
provide notice as required by the regulations promulgated under the 1934
Act.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be
conducted at any annual meeting except in accordance with the procedures
set
forth in this Section 10. The chairman of the meeting
shall,
if
the facts warrant, determine and declare at the meeting that business was
not
properly brought before the meeting and in accordance with the provisions
of
this Section 10, and, if he should so determine, he shall so declare at
the
meeting that any such business not properly brought before the meeting
shall not
be transacted.
Section
11. Election
of Directors.
Only
persons who are nominated in accordance with the procedures set forth in
this
Section 11 shall be eligible for election as directors. Nominations of
persons
for election to the Board of Directors of the Company may be made (i) at
an
annual or special meeting of shareholders by or at the direction of the
Board of
Directors or (ii) at an annual meeting by any shareholder of the Company
entitled to vote in the election of directors at the meeting who complies
with
the notice procedures set forth in this Section 11. Such nominations, other
than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Company in
accordance with the provisions of Section 10. Such shareholder's notice
shall
set forth (i) as to each person, if any, whom the shareholder proposes
to
nominate for election or re-election as a director: (A) the name, age,
business
address and residence address of such person, (B) the principal occupation
or
employment of such person, (C) the class and number of shares of the Company
which are beneficially owned by such person, (D) a description of all
arrangements or understandings between the shareholder and each nominee
or any
other person or persons (naming such person or persons) pursuant to which
the
nominations are to be made by the shareholder, and (E) any other information
relating to such person that is required to be disclosed in solicitations
of
proxies for elections of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act (including, without limitation,
such person's written consent to being named in the proxy statement, if
any, as
a nominee and to serving as a director if elected); and (ii) as to such
shareholder giving notice, the information required to be provided pursuant
to
Section 10. At the request of the Board of Directors, any person nominated
by a
shareholder for election as a director shall furnish to the Secretary of
the
Company that information required to be set forth in the shareholder's
notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the Company unless nominated in accordance with
the
procedures set forth in this Section 11. The chairman of the meeting shall,
if
the facts warrant, determine and declare at the meeting that nomination
was not
made in accordance with the procedures prescribed by these By-Laws, and
if he
should so determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
ARTICLE
II
DIRECTORS:
Section
1. Number
and Term and Classes of Directors.
The
whole Board of Directors shall consist of not less than ten (10) nor more
than
twenty (20) members, the exact number to be set from time to time by the
Board
of Directors. No decrease in the number of directors shall shorten the
term of
any incumbent director. In absence of the Board of Directors setting the
number
of directors, the number shall be 20. The Board of Directors shall be elected
each year, at the annual meeting of shareholders, to hold office until
the next
annual meeting and until their successors are elected and
qualified.
Section
2. Regular
Meetings.
Regular
meetings of the Board of Directors shall be held at such times as the Board
of
Directors may determine from time to time.
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Section
3. Special
Meetings.
Special
meetings of the Board of Directors may be called by the Chairman of the
Board of
Directors, the Secretary or by a majority of the directors by written request
to
the Secretary.
Section
4. Notice
of Meetings.
The
Secretary shall give notice of all meetings of the Board of Directors by
mailing
the notice at least three days before each meeting or by telegraphing or
telephoning the directors, or sending notice to the directors by facsimile
or
other electronic transmission, not later than one day before the meeting.
The
notice shall state the time, date and place of the meeting, which shall
be
determined by the Chairman of the Board of Directors, or, in absence of
the
Chairman, by the Secretary of the Company, unless otherwise determined
by the
Board of Directors by action taken prior to the meeting.
Section
5. Quorum
and Voting.
A
majority of the directors holding office shall constitute a quorum for
the
transaction of business. Except as otherwise specifically required by Delaware
law or by the Certificate of Incorporation of the Company or by these By-Laws,
any action required to be taken shall be authorized by a majority of the
directors present at any meeting at which a quorum is present.
Section
6. Participation
in Meetings; Action by Unanimous Consent.
Members
of the Board of Directors, or any committee thereof, may participate in
a
meeting of the Board of Directors or any committee thereof by means of
conference telephone or other communications equipment by means of which
all
persons participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting. Action may be taken
by the
Board of Directors without a meeting if all members thereof consent thereto
in
writing or by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings
of
the Board of Directors. Such filing shall be in paper form if the minutes
are
maintained in paper form and shall be in electronic form if the minutes
are
maintained in electronic form.
Section
7. General
Powers of Directors.
The
business and affairs of the Company shall be managed under the direction
of the
Board of Directors.
Section
8. Chairman.
At all
meetings of the Board of Directors, the Chairman of the Board of Directors
shall
preside and in the absence of, or in the case of a vacancy in the office
of, the
Chairman of the Board of Directors, a chairman selected by the Chairman
of the
Board of Directors or, if he fails to do so, by the directors, shall
preside.
Section
9. Compensation
of Directors.
Directors and members of any committee of the Board of Directors shall
be
entitled to such reasonable compensation and fees for their services as
shall be
fixed from time to time by resolution of the Board of Directors and shall
also
be entitled to reimbursement for any reasonable expenses incurred in attending
meetings of the Board of Directors and any committee thereof, except that
a
director who is an officer or employee of the Company shall receive no
compensation or fees for serving as a director or a committee
member.
Section
10. Qualification
of Directors.
Any
director who was elected or re-elected because he or she was an officer
of the
Company at the time of that election or the most recent re-election shall
resign
as a member of the Board of Directors simultaneously when he or she ceases
to be
an officer of the Company.
4
ARTICLE
III
COMMITTEES
OF THE BOARD OF DIRECTORS:
Section
1.
Committees of the Board of Directors.
The
Board of Directors shall designate an Audit Committee, a Compensation Committee
and a Committee on Directors and Corporate Governance, and whatever other
committees the Board of Directors deems advisable, each of which shall
have and
may exercise the powers and authority of the Board of Directors to the
extent
provided in the charters of each committee adopted by the Board of Directors
in
one or more resolutions.
The
Chairman of the Board shall have the power and authority of a committee
of the
Board of Directors for purposes of taking any action which the Chairman
of the
Board is authorized to take under the provisions of this Article.
Section
2. Election
of Committee Members.
The
members of each committee shall be elected by the Board of Directors and
shall
serve until the first meeting of the Board of Directors after the annual
meeting
of shareholders and until their successors are elected and qualified or
until
the members' earlier resignation or removal. The Board of Directors may
designate the Chairman and Vice Chairman of each committee. Vacancies may
be
filled by the Board of Directors at any meeting.
The
Chairman of the Board may designate one or more directors to serve as an
alternate member or members at any committee meeting to replace any absent
or
disqualified member, such alternate or alternates to serve for that committee
meeting only, and the Chairman of the Board may designate a committee member
as
acting chairman of that committee, in the absence of the elected committee
chairman, to serve for that committee meeting only.
Section
3. Procedure/Quorum/Notice.
The
Committee Chairman, Vice Chairman or a majority of any committee may call
a
meeting of that committee. A quorum of any committee shall consist of a
majority
of its members unless otherwise provided by resolution of the Board of
Directors. The majority vote of a quorum shall be required for the transaction
of business. The secretary of the committee or the chairman of the committee
shall give notice of all meetings of the committee by mailing the notice
to the
members of the committee at least three days before each meeting or by
telegraphing or telephoning the members or sending the notice to members
by
facsimile or other electronic transmission, not later than one day before
the
meeting. The notice shall state the time, date and place of the meeting.
Each
committee shall fix its other rules of procedure. Action may be taken by
any
committee without a meeting if all members thereof consent thereto in writing
or
by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings
of
such committee. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained
in
electronic form.
ARTICLE
IV
NOTICE
AND WAIVER OF NOTICE:
Section
1. Notice.
Any
notice required to be given to shareholders or directors under these By-Laws,
the Certificate of Incorporation or by law may be given by mailing the
same,
addressed to the person entitled thereto, at such person's last known post
office address and such notice shall be deemed to be given at the time
of such
mailing. Without limiting the manner by which notice otherwise may be given
effectively to shareholders, any notice to shareholders may be given by
5
electronic
transmission in the manner provided in Section 232 of the Delaware General
Corporation Law.
Section
2. Waiver
of Notice.
Whenever
any notice is required to be given under these By-Laws, the Certificate
of
Incorporation or by law, a written waiver thereof, signed by the person
entitled
to notice, or a waiver given by such person by electronic transmission,
whether
before or after the time stated therein, shall be deemed equivalent to
notice.
Attendance of a person at a meeting shall constitute a waiver of notice
of such
meeting, except when the person attends a meeting for the express purpose
of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to
be transacted at, nor the purpose of any regular or special meeting of
the
shareholders, directors or a committee of directors need be specified in
any
written waiver of notice.
ARTICLE
V
OFFICERS:
Section
1. Officers
of the Company.
The
officers of the Company shall be selected by the Board of Directors and
shall be
a Chairman of the Board of Directors, one or more Vice Presidents, a Secretary
and a Treasurer. The Board of Directors may elect a Vice Chairman, President
and
a Controller and one or more of the following: Senior Executive Vice President,
Executive Vice President, Senior Vice President, Assistant Vice President,
Assistant Secretary, Associate Treasurer, Assistant Treasurer, Associate
Controller and Assistant Controller. Two or more offices may be held by
the same
person.
The
Company may have a General Counsel who shall be appointed by the Board
of
Directors and shall have general supervision of all matters of a legal
nature
concerning the Company, unless the Board of Directors has also appointed
a
General Tax Counsel, in which event the General Tax Counsel shall have
general
supervision of all tax matters of a legal nature concerning the
Company.
The
Company may have a Chief Financial Officer who shall be appointed by the
Board
of Directors and shall have general supervision over the financial affairs
of
the Company. The Company may also have a Chief of Internal Audits who shall
be
appointed by the Board of Directors.
Section
2. Election
of Officers.
At the
first meeting of the Board of Directors after each annual meeting of
shareholders, the Board of Directors shall elect the officers. From time
to time
the Board of Directors may elect other officers.
Section
3. Tenure
of Office; Removal.
Each
officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of shareholders following the officer's election
and
until the officer's successor is elected and qualified or until the officer's
earlier resignation or removal. Each officer shall be subject to removal
at any
time, with or without cause, by the affirmative vote of a majority of the
entire
Board of Directors.
Section
4. Chairman
of the Board of Directors.
The
Chairman of the Board of Directors shall be the Chief Executive Officer
of the
Company and, subject to the overall direction and supervision of the Board
of
Directors and committees thereof, shall be in general charge of the affairs
of
the Company; and shall consult and advise with the Board of Directors and
committees thereof on the business and the affairs of the Company. The
Chairman
of the Board of Directors shall have the
6
power
to
make and execute contracts and other instruments, including powers of attorney,
on behalf of the Company and to delegate such power to others.
Section
5. President.
The
Board of Directors may select a President who shall have such powers and
perform
such duties as may be assigned by the Board of Directors or by the Chairman
of
the Board of Directors. In the absence or disability of the President,
his or
her duties shall be performed by such Vice Presidents as the Chairman of
the
Board of Directors or the Board of Directors may designate. The President
shall
also have the power to make and execute contracts on the Company's behalf
and to
delegate such power to others.
Section
6. Vice
Presidents.
Each
Senior Executive Vice President, Executive Vice President, Senior Vice
President
and Vice President shall have such powers and perform such duties as may
be
assigned to the officer by the Board of Directors or by the Chairman of
the
Board of Directors or the President.
Section
7. Secretary.
The
Secretary shall keep minutes of all meetings of the shareholders and of
the
Board of Directors, and shall keep, or cause to be kept, minutes of all
meetings
of committees of the Board of Directors, except where such responsibility
is
otherwise fixed by the Board of Directors. The Secretary shall issue all
notices
for meetings of the shareholders and Board of Directors and shall have
charge of
and keep the seal of the Company and shall affix the seal attested by the
Secretary's signature to such instruments as may properly require same.
The
Secretary shall cause to be kept such books and records as the Board of
Directors, the Chairman of the Board of Directors or the President may
require;
and shall cause to be prepared, recorded, transferred, issued, sealed and
cancelled certificates of stock as required by the transactions of the
Company
and its shareholders. The Secretary shall attend to such correspondence
and such
other duties as may be incident to the office of the Secretary or assigned
by
the Board of Directors, the Chairman of the Board of Directors, or the
President.
In
the
absence of the Secretary, an Assistant Secretary is authorized to assume
the
duties herein imposed upon the Secretary.
Section
8. Treasurer.
The
Treasurer shall perform all duties and acts incident to the position of
Treasurer, shall have custody of the Company funds and securities, and
shall
deposit all money and other valuable effects in the name and to the credit
of
the Company in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Company as may be authorized,
taking proper vouchers for such disbursements, and shall render to the
Board of
Directors, whenever required, an account of all the transactions of the
Treasurer and of the financial condition of the Company. The Treasurer
shall
vote all of the stock owned by the Company in any corporation and may delegate
this power to others. The Treasurer shall perform such other duties as
may be
assigned to the Treasurer and shall report to the Chief Financial Officer
or, in
the absence of the Chief Financial Officer, to the Chairman of the Board
of
Directors.
In
the
absence of the Treasurer, an Assistant Treasurer is authorized to assume
the
duties herein imposed upon the Treasurer.
Section
9. Controller.
The
Board of Directors may select a Controller who shall keep or cause to be
kept in
the books of the Company provided for that purpose a true account of all
transactions and of the assets and liabilities of the Company. The Controller
shall prepare and submit to the Chief Financial Officer or, in the absence
of
the Chief Financial Officer, to the Chairman of the Board of
7
Directors,
such financial statements and schedules as may be required to keep the
Chief
Financial Officer and the Chairman of the Board of Directors currently
informed
of the operations and financial condition of the Company, and perform such
other
duties as may be assigned by the Chief Financial Officer or the Chairman
of the
Board of Directors.
In
the
absence of the Controller, an Assistant Controller is authorized to assume
the
duties herein imposed upon the Controller.
Section
10. Chief
of Internal Audits.
The
Board of Directors may select a Chief of Internal Audits, who shall cause
to be
performed, and have general supervision over, auditing activities of the
financial transactions of the Company, including the coordination of such
auditing activities with the independent accountants of the Company and
who
shall perform such other duties as may be assigned to him from time to
time. The
Chief of Internal Audits shall report to the Chief Financial Officer or,
in the
absence of the Chief Financial Officer, to the Chairman of the Board of
Directors. From time to time at the request of the Audit Committee, the
Chief of
Internal Audits shall inform that committee of the auditing activities
of the
Company.
Section
11. Assistant
Vice Presidents.
The
Company may have Assistant Vice Presidents who shall be appointed by a
committee
whose membership shall include one or more executive officers of the Company
(the "Committee"). Each such Assistant Vice President shall have such powers
and
shall perform such duties as may be assigned from time to time by the Committee,
the Chairman of the Board of Directors, the President or any Vice President,
and
which are not inconsistent with the powers and duties granted and assigned
by
these By-Laws or the Board of Directors. Assistant Vice Presidents appointed
by
the Committee shall be subject to removal at any time, with or without
cause, by
the Committee. Annually the Committee shall report to the Board of Directors
who
it has appointed to serve as Assistant Vice Presidents and their respective
responsibilities.
ARTICLE
VI
RESIGNATIONS:
FILLING OF VACANCIES:
Section
1. Resignations.
Any
director, member of a committee, or officer may resign at any time. Such
resignation shall be made by notice to the Chairman of the Board of Directors
or
the Secretary given in writing or by electronic transmission and shall
take
effect at the time specified therein, and, if no time be specified, at
the time
of its receipt by the Chairman of the Board of Directors or the Secretary.
The
acceptance of a resignation shall not be necessary to make it
effective.
Section
2. Filling
of Vacancies.
If the
office of any director becomes vacant, the directors in office, although
less
than a quorum, or, if the number of directors is increased, the directors
in
office, may elect any qualified person to fill such vacancy. In the case
of a
vacancy in the office of a director caused by an increase in the number
of
directors, the person so elected shall hold office until the next annual
meeting
of shareholders, or until his successor shall be elected and qualified.
In the
case of a vacancy in the office of a director resulting otherwise than
from an
increase in the number of directors, the person so elected to fill such
vacancy
shall hold office for the unexpired term of the director whose office became
vacant. If the office of any officer becomes vacant, the Chairman of the
Board
of Directors may appoint any qualified person to fill such vacancy temporarily
until the Board of Directors elects any qualified person for the unexpired
portion of the term. Such person shall hold office for the unexpired term
and
until the officer's successor shall be duly elected and qualified or until
the
officer's earlier resignation or removal.
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ARTICLE
VII
INDEMNIFICATION:
Section
1.Indemnification
of Directors, Officers, Employees and Agents.
The
Company shall indemnify any person who was or is a party or is threatened
to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action
by or in the right of the Company) by reason of the fact that he is or
was a
director, officer, employee or agent of the Company, or is or was serving
at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid
in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Company,
and, with respect to any criminal action or proceeding, had no reasonable
cause
to believe his conduct was unlawful. The termination of any action, suit
or
proceeding by judgment, order, settlement, 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 which he reasonably
believed to be in or not opposed to the best interest of the Company, and
with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
The
Company shall indemnify any person who was or is a party or is threatened
to be
made a party to any threatened, pending or completed action or suit by
or in the
right of the Company to procure a judgment in its favor by reason of the
fact
that he is or was a director, officer, employee or agent of the Company,
or is
or was serving at the request of the Company, as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action
or
suit if he acted in good faith and in a manner he reasonably believed to
be in
or not opposed to the best interests of the Company and 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 to the Company
unless
and only to the extent that the Court of Chancery or the court in which
such
action or suit was brought 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 indemnity for such expenses
which
the Court of Chancery or such other court shall deem proper.
Notwithstanding
the foregoing, except with respect to a proceeding to enforce rights to
indemnification or advancement of expenses under this Article VII, the
Company
shall be required to indemnify a person under this Article VII in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of
Directors.
Section
2. Expenses.
To the
extent that a director, officer, employee or agent of the Company has been
successful on the merits or otherwise, in whole or in part, in defense
of any
action, suit or proceeding referred to in Section 1 or in defense of any
claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. The entitlement to expenses under this Section 2 shall include
any
expenses incurred by a director, officer, employee or agent of the Company
in
connection with any action, suit or proceeding brought by such director,
officer, employee or agent to enforce a right to
9
indemnification
or payment of expenses under this Article. If successful in whole or in
part in
any such action, suit or proceeding, or in any action, suit or proceeding
brought by the Company to recover a payment of expenses pursuant to the
terms of
an undertaking provided in accordance with Section 4, the director, officer,
employee or agent also shall be entitled to be paid the expense of prosecuting
or defending such action, suit or proceeding.
Section
3. Procedure
for Receiving Indemnification.
To
receive indemnification under this By-Law, a director, officer, employee
or
agent of the Company shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to him and reasonably necessary to determine his entitlement
to
indemnification. Upon receipt by the Company of a written request for
indemnification, a determination, if required by applicable law, with respect
to
a claimant's request shall be made: (1) by the Board of Directors by a
majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, even though less than a quorum; or (2) by a committee
of
such directors designated by majority vote of such directors, even though
less
than a quorum; or (3) if there are no such directors, or if such directors
so
direct, by independent legal counsel in a written opinion; or (4) by the
shareholders. The determination of a claimant's entitlement to indemnification
shall be made within a reasonable time, and in any event within no more
than 60
days, after receipt by the Company of a written request for indemnification,
together with the supporting documentation required by this Section. The
burden
of establishing that a claimant is not entitled to be indemnified under
this
Article or otherwise shall be on the Company.
Section
4. Payment
of Expenses.
Expenses
incurred in defending a civil or criminal action, suit or proceeding shall
be
paid by the Company in advance of the final disposition of such action,
suit or
proceeding within 30 days after receipt by the Company of a statement requesting
payment of such expenses. Such statement shall evidence the expenses incurred
by
the claimant and shall include an undertaking by or on behalf of the claimant
to
repay such expenses if it shall ultimately be determined, by final judicial
decision from which there is no further right to appeal, that he is not
entitled
to be indemnified by the Company as authorized by this Article. The burden
of
establishing that a claimant is not entitled to payment of expenses under
this
Article or otherwise shall be on the Company. Any such payment shall not
be
deemed to be a loan or extension or arrangement of credit by or on behalf
of the
Company.
Section
5. Provisions
Non-Exclusive; Survival of Rights.
The
indemnification and payment of expenses provided by or granted pursuant
to this
Article shall not be deemed exclusive of any other rights to which those
indemnified or those who receive payment of expenses may be entitled under
any
By-Law, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased
to
be a director, officer, employee or agent and shall inure to the benefit
of the
heirs, executors and administrators of such a person.
Section
6. Insurance.
The
Company shall have power to purchase and maintain insurance on behalf of
any
person who is or was a director, officer, employee or agent of the Company,
or
is or was serving at the request of the Company as a director, officer,
employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him
in any
such capacity, or arising out of his status as such, whether or not the
Company
would have the power to indemnify him against such liability under the
provisions of this Article.
10
Section
7. Authority
to Enter into Indemnification Agreements.
The
Company shall have the power to enter into contracts with any director,
officer,
employee or agent of the Company in furtherance of the provisions of this
Article to provide for the payment of such amounts as may be appropriate,
in the
discretion of the Board of Directors, to effect indemnification and payment
of
expenses as provided in this Article.
Section
8. Effect
of Amendment.
Any
amendment, repeal or modification of this Article shall not adversely affect
any
right or protection existing at the time of such amendment, repeal or
modification in respect of any act or omission occurring prior to such
amendment, repeal or modification.
Section
9. No
Duplication of Payments.
The
Company's obligation, if any, to indemnify or pay expenses to any person
under
this Article shall be reduced to the extent such person has otherwise received
payment (under any insurance policy, indemnity clause, bylaw, agreement,
vote or
otherwise).
ARTICLE
VIII
CAPITAL
STOCK:
Section
1.
Form
and Execution of Certificates.
The
certificates of shares of the capital stock of the Company shall be in
such form
as shall be approved by the Board of Directors. The certificates shall
be signed
by the Chairman of the Board of Directors or the President, or a Vice President,
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer. Each certificate of stock shall certify the number of shares
owned by
the shareholder in the Company.
A
facsimile of the seal of the Company may be used in connection with the
certificates of stock of the Company, and facsimile signatures of the officers
named in this Section may be used in connection with said certificates.
In the
event any officer whose facsimile signature has been placed upon a certificate
shall cease to be such officer before the certificate is issued, the certificate
may be issued with the same effect as if such person was an officer at
the date
of issue.
Section
2. Record
Ownerships.
All
certificates shall be numbered appropriately and the names of the owners,
the
number of shares and the date of issue shall be entered in the books of
the
Company. The Company shall be entitled to treat the holder of record of
any
share of stock as the holder in fact thereof and accordingly shall not
be bound
to recognize any equitable or other claim to or interest in any share on
the
part of any other person, whether or not it shall have express or other
notice
thereof, except as required by the laws of Delaware.
Section
3. Transfer
of Shares.
Upon
surrender to the Company or to a transfer agent of the Company of a certificate
for shares duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to transfer, it shall be the duty of the Company,
if it
is satisfied that all provisions of law regarding transfers of shares have
been
duly complied with, to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its
books.
Section
4. Lost,
Stolen or Destroyed Stock Certificates.
Any
person claiming a stock certificate in lieu of one lost, stolen or destroyed
shall give the Company an affidavit as to such person's ownership of the
certificate and of the facts which go to prove that it was lost, stolen
or
destroyed. The person shall also, if required by the Board of Directors,
give
the Company a bond, sufficient to
11
indemnify
the Company against any claims that may be made against it on account of
the
alleged loss, theft or destruction of any such certificate or the issuance
of
such new certificate. Any Vice President or the Secretary or any Assistant
Secretary of the Company is authorized to issue such duplicate certificates
or
to authorize any of the transfer agents and registrars to issue and register
such duplicate certificates.
Section
5. Regulations.
The
Board of Directors from time to time may make such rules and regulations
as it
may deem expedient concerning the issue, transfer and registration of
shares.
Section
6. Transfer
Agent and Registrar.
The
Board of Directors may appoint such transfer agents and registrars of transfers
as may be deemed necessary, and may require all stock certificates to bear
the
signature of either or both.
ARTICLE
IX
SEAL:
Section
1. Seal.
The
Board of Directors shall provide a suitable seal containing the name of
the
Company, the year of its creation, and the words, "CORPORATE SEAL, DELAWARE,"
or
other appropriate words. The Secretary shall have custody of the
seal.
ARTICLE
X
FISCAL
YEAR:
Section
1. Fiscal
Year.
The
fiscal year of the Company shall be the calendar year.
ARTICLE
XI
AMENDMENTS:
Section
1. Directors
May Amend By-Laws.
The
Board of Directors shall have the power to make, amend and repeal the By-laws
of
the Company.
Section
2. By-laws
Subject to Amendment by Shareholders.
All
By-Laws shall be subject to amendment, alteration, or repeal by the shareholders
entitled to vote at any annual meeting or at any special meeting.
ARTICLE
XII
EMERGENCY
BY-LAWS:
Section
1. Emergency
By-laws.
This
Article XII shall be operative during any emergency resulting from an attack
on
the United States or on a locality in which the Company conducts its business
or
customarily holds meetings of its Board of Directors or its shareholders,
or
during any nuclear or atomic disaster or during the existence of any catastrophe
or other similar emergency condition, as a result of which a quorum of
the Board
of Directors or, if one has been constituted, the Executive Committee thereof
cannot be readily convened (an "emergency"), notwithstanding any different
or
conflicting provision in the preceding Articles of these By-laws or in
the
Certificate of Incorporation of the Company. To the extent not inconsistent
with
the provisions of this Article, the By-laws provided in the preceding Articles
and the provisions of the Certificate of Incorporation of the Company shall
remain in effect during such emergency, and upon termination of such emergency,
the provisions of this Article XII shall cease to be operative.
Section
2. Meetings.
During
any emergency, a meeting of the Board of Directors, or any committee thereof,
may be called by any officer or director of the Company. Notice of the
time and
place of the meeting shall be given by any available means of communication
by
the person calling the
12
meeting
to such of the directors and/or Designated Officers, as defined in Section
3
hereof, as it may be feasible to reach. Such notice shall be given at such
time
in advance of the meeting as, in the judgment of the person calling the
meeting,
circumstances permit.
Section
3. Quorum.
At any
meeting of the Board of Directors, or any committee thereof, called in
accordance with Section 2 of this Article XII, the presence or participation
of
two directors, one director and a Designated Officer or two Designated
Officers
shall constitute a quorum for the transaction of business.
The
Board
of Directors or the committees thereof, as the case may be, shall, from
time to
time but in any event prior to such time or times as an emergency may have
occurred, designate the officers of the Company in a numbered list (the
"Designated Officers") who shall be deemed, in the order in which they
appear on
such list, directors of the Company for purposes of obtaining a quorum
during an
emergency, if a quorum of directors cannot otherwise be obtained.
Section
4. By-laws.
At any
meeting called in accordance with Section 2 of this Article XII, the Board
of
Directors or the committees thereof, as the case may be, may modify, amend
or
add to the provisions of this Article XII so as to make any provision that
may
be practical or necessary for the circumstances of the emergency.
Section
5. Liability.
No
officer, director or employee of the Company acting in accordance with
the
provisions of this Article XII shall be liable except for willful
misconduct.
Section
6. Repeal
or Change.
The
provisions of this Article XII shall be subject to repeal or change by
further
action of the Board of Directors or by action of the shareholders, but
no such
repeal or change shall modify the provisions of Section 5 of this Article
XII
with regard to action taken prior to the time of such repeal or
change.
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