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EXHIBIT 3
BY-LAWS
OF
COCA-COLA ENTERPRISES INC.
As amended through July 18, 2000
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BY-LAWS
OF
COCA-COLA ENTERPRISES INC.
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 1013 Centre Road, Wilmington,
Delaware, on the second 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. The vote for
the election of directors shall be by ballot. Directors shall be elected by a
plurality of the votes cast in the election for such directors. All other action
shall be authorized by a majority of the votes cast unless a greater vote is
required by the Certificate of Incorporation or Delaware law. A shareholder may
vote in person or by proxy.
Section 3. Quorum. The holders of a majority in voting power of the
issued and outstanding shares of stock of the Company, present in person or
represented by proxy, shall constitute a quorum at all meetings of shareholders.
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 of
the date, time and place of the adjourned 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, and time, and in the case of a special meeting, the purpose of the
shareholders 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 any Vice President in order of seniority in
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time in 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 presiding officer may appoint a secretary.
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 either the Board of Directors or by the
chairman of the meeting. The inspectors of election shall determine the shares
represented at the meeting and the validity of proxies and ballots, count the
votes and ballots, certify their determination of same, and perform such other
duties as provided by applicable law.
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 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, may fix 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 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 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 Business and Nominations.
(a) Nominations of persons for election to the Board of
Directors of the Company and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders only (i) pursuant
to the Company's notice of meeting (or any supplement thereto), (ii) by or at
the direction of the Board of Directors or (iii) by any shareholder of the
Company who was a shareholder of record of the Company at the time the notice
provided for in this Section 10 is delivered to the Secretary of the Company,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 10.
(b) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (iii) of paragraph
(a) of this Section 10, the shareholder must have given timely notice thereof in
writing to the Secretary of the Company and such other business must otherwise
be a proper matter for shareholder action. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the ninetieth day nor earlier
than the close of business on the one hundred-twentieth day 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 more than thirty days before or
more than seventy days after such anniversary date, notice by the shareholder to
be timely must be received not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first made by
the Company). In no event shall an adjournment or postponement of an annual
meeting or the public announcement thereof commence a new time period (or extend
any time period) for the giving of a shareholder's notice as described above.
Such shareholder's notice shall set forth: (i) as to each person whom the
shareholder proposes to nominate for election or reelection as a director all
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information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(and such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to any other business
that the shareholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-Laws of the Company, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (iii) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (1)
the name and address of such shareholder, as they appear on the Company's books,
and of such beneficial owner, (2) the class and number of shares of capital
stock of the Company which are owned of record and beneficially by such
shareholder and such beneficial owner, (3) a representation that the shareholder
is a holder of record of stock of the Company entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
business or nomination, and (4) a representation whether the shareholder or the
beneficial owner, if any, intends or is part of a group which intends either to
(x) deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Company's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (y) otherwise solicit proxies
from shareholders in support of such proposal or nomination. The foregoing
notice requirements shall be deemed satisfied by a shareholder if the
shareholder has notified the Company of his or her intention to present a
proposal at or during a meeting in compliance with Rule 14a-8 (or any successor
thereto) promulgated under the Exchange Act and such shareholder's proposal has
been included in a proxy statement that has been prepared by the Company to
solicit proxies for such annual meeting. The Company may require any proposed
nominee to furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a director of the
Company.
(c) Notwithstanding anything in the second sentence of
paragraph (b) of this Section 10 to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Company at an annual
meeting is increased and there is no public announcement by the Company naming
all of the nominees for director or specifying the size of the increased Board
of Directors at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this Section
10 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 Company not later than the
close of business on the tenth day following the day on which such public
announcement is first made by the Company.
(d) Only such business shall be conducted at a special meeting
of shareholders as shall have been brought before the meeting pursuant to the
Company's notice of meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders at which directors
are to be elected pursuant to the Company's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any
shareholder of the Company who is a shareholder of record at the time the notice
provided for in this Section 10 is delivered to the Secretary of the Company,
who shall be entitled to vote at the meeting and upon such election and who
complies with the notice procedures set forth in this Section 10. In the event
the Company calls
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a special meeting of shareholders for the purpose of electing one or more
directors to the Board of Directors, any such shareholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Company's notice of
meeting, if the shareholder's notice required by paragraph (b) of this Section
10 shall be delivered to the Secretary at the principal executive offices of the
Company not earlier than the close of business on the one hundred twentieth day
prior to such special meeting and not later than the close of business on the
later of the ninetieth day prior to such special meeting or the tenth 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. In no event shall an adjournment or postponement of a
special meeting or the public announcement thereof commence a new time period
(or extend any time period) for the giving of a shareholder's notice as
described above.
(e)(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 10 shall be eligible to be elected at an
annual or special meeting of shareholders of the Company to serve as directors
and only such business shall be conducted at a meeting of shareholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 10. Except as otherwise provided by Delaware law or the
Certificate of Incorporation, 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 or proposed, as the case may be, in
accordance with the procedures set forth in this Section 10 and, if it is
determined that any proposed nomination or business is not in compliance with
this Section 10 (including, without limitation, because the shareholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited), or failed to so solicit (as
the case may be), proxies in support of such shareholder's nominee or proposal
other than in compliance with such shareholder's representation as required by
clause (iii)(4) of Section (b) of this Section 10), to declare that such
nomination shall be disregarded or that such proposed business shall not be
transacted.
(2) For purposes of this Section 10, "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 Company 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
10, a shareholder 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 10. Nothing in this Section 10 shall be deemed
to affect any rights (i) of shareholders to request inclusion of proposals in
the Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
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ARTICLE II
DIRECTORS
Section 1. Number of Directors. The whole Board of Directors shall
consist of not less than three (3) 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
12.
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.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, the
President, the Secretary or by a majority of the directors by written request to
the Secretary.
Section 4. Notice of Meetings. The Chairman, a Vice Chairman or 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 giving notice of the
meeting by telephone, facsimile, e-mail or other form of electronic transmission
to the directors 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.
Section 5. Quorum and Voting. A majority of the directors holding
office (but not less than one-third of the whole Board of Directors) 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 taken by the Board of Directors
shall be authorized by a majority of the directors present at any meeting at
which a quorum is present.
Section 6. General Powers of Directors. The business and affairs of
the Company shall be managed under the direction of the Board of Directors.
Section 7. Chairman. The Board of Directors may elect a Chairman of
the Board of Directors, who shall preside as chairman of all meetings of the
directors and all meetings of the shareholders of the Company, and who shall
perform such other duties as may be assigned from time to time by the Board of
Directors. The Board of Directors may also elect one or more Vice Chairmen, who
shall perform such duties as may be assigned from time to time by the Board of
Directors. In the absence of, or in the case of a vacancy in the office of, the
Chairman of the Board of Directors, the Vice Chairman shall preside. If there is
more than one Vice Chairman, the Vice Chairman who is also an officer, or, if
each is an officer, the Vice Chairman who is the senior officer, shall preside.
In the absence of, or, in the case of vacancies in the offices of, Chairman and
Vice 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.
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Section 8. 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 9. Qualification of Directors. Each person who shall attain
the age of 70 shall not thereafter be eligible for nomination or renomination as
a member of the Board of Directors.
Section 10. Disqualification of Officer-Directors Who Cease to be
Officers of the Company. Any director who was an officer of the Company at the
time of his or her election or most recent reelection as a director shall cease
to be qualified to continue to serve as a member of the Board of Directors, and
his or her term of office as a director shall automatically cease,
simultaneously when he or she ceases to be an officer of the Company.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Committees of the Board of Directors. The Board of
Directors shall designate an Executive Committee, an Audit Committee, a
Compensation Committee, a Committee on Directors, a Public Issues Review
Committee, a Retirement Plan Review Committee, an Affiliated Transaction
Committee, and a Committee on Corporate Governance, each of which shall have and
may exercise the powers and authority of the Board of Directors to the extent
hereinafter provided. The Board of Directors may designate one or more
additional committees of the Board of Directors with such powers as shall be
specified in the resolution of the Board of Directors. Each committee shall
consist of such number of directors as shall be determined from time to time by
resolution of the Board of Directors. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously elect another member of the Board of Directors to act at the meeting
in the place of any such absent or disqualified member.
Each committee shall keep regular minutes of its meetings. All action
taken by a committee shall be reported to the Board of Directors at its meeting
next succeeding such action and shall be subject to approval and revision by the
Board, provided that no legal rights of third parties shall be affected by such
revisions.
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 of each committee. Vacancies may be filled by the Board of Directors at
any meeting.
Section 3. Procedure/Quorum/Notice. The 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
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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 notice to the
members of the committee at least three days before each meeting or by giving
notice by telephone, facsimile, e-mail or other form of electronic transmission
to the members 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.
Section 4. Executive Committee. During the interval between meetings
of the Board of Directors, the Executive Committee shall have and may exercise
all the powers and authority of the Board of Directors, to act upon any matters
which, in the opinion of the Chairman of the Board, should not be postponed
until the next previously scheduled meeting of the Board of Directors; but, to
the extent prohibited by law, shall not have the power or authority of the Board
of Directors in reference to (i) approving or adopting, or recommending to the
shareholders, any action or matter expressly required by Delaware law to be
submitted to shareholders for approval; or (ii) adopting, amending or repealing
any By-Law of the Company.
Section 5. Audit Committee. The Audit Committee shall have the power
to recommend to the Board of Directors the selection and engagement of
independent accountants to audit the books and accounts of the Company and the
discharge of the independent accountants. The Audit Committee shall review the
scope of the audits as recommended by the independent accountants, the scope of
the internal auditing procedures of the Company and the system of internal
accounting controls and shall review the reports to the Audit Committee of the
independent accountants and the internal auditors.
Section 6. Compensation Committee. The Compensation Committee shall
have the power and authority to approve, adopt and implement the incentive,
stock option and similar plans of the Company. The Compensation Committee shall
have the power to approve, disapprove, modify or amend all plans designed and
intended to provide compensation primarily for officers of the Company. The
Compensation Committee shall review, fix and determine from time to time the
salaries and other remunerations of all officers of the Company.
Section 7. Committee on Directors. The Committee on Directors shall
have the power to recommend candidates for nomination for election to the Board
of Directors and shall consider nominees for directorships submitted by
shareholders. The Committee on Directors shall consider issues involving
potential conflicts of interest of directors and committee members and recommend
and review all matters relating to fees and retainers paid to directors,
committee members and committee chairmen.
Section 8. Public Issues Review Committee. The Public Issues Review
Committee shall have the power to review Company policy and practice relating to
significant public issues of concern to the shareholders, the Company, the
business community and the general public. The Committee may also review
management's position on shareholder proposals involving issues of public
interest to be presented at annual or special meetings of shareholders.
Section 9. Retirement Plan Review Committee. The Retirement Plan
Review Committee shall have the power to review the administration of all
employee retirement plans for the Company and the financial condition of all
trusts and other funds established pursuant to such plans. The
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Retirement Plan Review Committee shall also have the power to recommend to the
Board of Directors the adoption or amendment of any employee retirement plan of
the Company.
Section 10. Affiliated Transaction Committee.
(a) The Affiliated Transaction Committee shall review,
consider and pass upon any Affiliated Transaction, and no such transaction shall
be effected without the concurrence of the Affiliated Transaction Committee. The
Affiliated Transaction Committee shall have the powers to (i) negotiate with the
representatives of any party to an Affiliated Transaction; (ii) require approval
of an Affiliated Transaction by a vote of the shareholders of Coca-Cola
Enterprises Inc. which may be greater than or in addition to any vote required
by law; and (iii) engage Independent Advisers at the reasonable expense of the
Company, and without prior approval of the Company, to assist in its review and
decision regarding any Affiliated Transaction.
(b) The Affiliated Transaction Committee shall consist of
at least three Independent Directors, with each other Independent Director being
an alternate member if any committee member is unable or unwilling to serve.
(c) The Affiliated Transaction Committee shall cease to exist
on the later of (i) February 10, 2001 or (ii) the date on which any Affiliated
Transaction being reviewed, considered and passed upon by the Affiliated
Transaction Committee prior to February 10, 2001 shall have been either
consummated or abandoned.
(d) For the purposes of the foregoing Article III, Section 10,
the following definitions shall apply:
(i) "Company" means Coca-Cola Enterprises Inc. or any
company in which Coca-Cola Enterprises Inc. has more than 50% of the
voting power in the election of directors or in which it has the power
to elect a majority of the Board of Directors.
(ii) "The Coca-Cola Company" means The Coca-Cola Company
or any company in which The Coca-Cola Company has more than 50% of the
voting power in the election of directors or in which it has the power
to elect a majority of the Board of Directors.
(iii) "Affiliate" means any entity (other than the
Company) in which The Coca-Cola Company has a 20% or greater equity or
other ownership interest, or any entity controlled directly or
indirectly by such Affiliate. Notwithstanding the above, no entity shall
be an Affiliate solely by virtue of the rights granted to The Coca-Cola
Company pursuant to a bottling contract.
(iv) "Affiliated Transaction" means any proposed merger
or consolidation with, purchase of an equity interest in, or purchase of
assets other than in the ordinary course of business from an Affiliate.
and which transaction has an aggregate value exceeding $10 million.
(v) "Independent Directors" means any member of the
Company's Board of Directors who (i) is not, and for the past five years
has not been, an officer, director or employee of The Coca-Cola Company
or an Affiliate; (ii) does not own in excess of 1% of the
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shares of The Coca-Cola Company; and (iii) does not own any equity or
other ownership interest in an entity (except as permitted by the
preceding (ii) and other than in the Company) which is a party to the
Affiliated Transaction.
(vi) "Independent Adviser" means any legal or financial
adviser or other expert (i) that has not represented or provided
services to The Coca-Cola Company during the past calendar year, or
(ii) notwithstanding (i) above, that the Affiliated Transaction
Committee (as defined below) determines, after due inquiry, is able to
represent it in an independent manner not adverse to the interests of
the Company and its stockholders.
Section 11. Committee on Corporate Governance. The Committee on
Corporate Governance shall have the power to review and make recommendations to
the Board regarding corporate governance policies and issues of the Company and
to review periodically the performance of the chief executive officer, chief
operating officer, and where appropriate, other senior officers. In consultation
with the chief executive officer, it shall also evaluate and recommend to the
Board candidates for the positions of chief executive officer and chief
operating officer and, where appropriate, other senior officer positions, as
they may become vacant.
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 (a) 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, or (b) as otherwise permitted
under these By-Laws or by applicable 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
waiver thereof, signed or given by electronic transmission, by the person
entitled to notice, 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 waiver of notice.
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ARTICLE V
OFFICERS
Section 1. Officers of the Company. The officers of the Company
shall be selected and elected by the Board of Directors and shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer. The Board
of Directors may elect 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 Board of Directors may designate the position of Chairman of the
Board of Directors as an officer of the Company, who, subject to the overall
direction and supervision of the Board of Directors and Committees thereof,
shall be the senior executive officer of the Company and shall have such powers
and perform such duties as may be assigned by the Board of Directors.
The Company may have a Chief Executive Officer who shall be elected by
the Board of Directors and who, subject to the overall direction and supervision
of the Board of Directors and Committees thereof, and the Chairman of the Board,
if the Chairman is an officer of the Company, shall be in general charge of the
affairs of the Company and shall consult with and advise the Board of Directors,
the committees thereof, and the Chairman of the Board, if the Chairman is an
officer of the Company, on the business and affairs of the Company.
The Company may have a Chief Operating Officer who shall be elected by
the Board of Directors and who, subject to the overall direction and supervision
of the Chief Executive Officer, shall be in general charge, control and
supervision over the administration and operations of the Company and shall have
such other duties and powers as may be imposed or given by the Board of
Directors.
If there is no Chief Operating Officer, the Company may have one or
more Principal Operating Officers who shall be elected by the Board of Directors
and who, subject to the overall direction and supervision of the Chief Executive
Officer, shall be in general charge, control and supervision over such of the
operations of the Company as may be determined by the Chief Executive Officer
and shall have such other duties and powers as may be imposed or given by the
Board of Directors.
The Company may have a Chief Administrative Officer who shall be
elected by the Board of Directors and who, subject to the overall direction and
supervision of the Chief Executive Officer, shall be in general charge, control
and supervision over such of the corporate administration functions of the
Company as may be determined by the Chief Executive Officer and shall have such
other duties and powers as may be imposed or given by the Board of Directors.
The Company may have a Chief Financial Officer who shall be elected by
the Board of Directors and shall have general supervision over the financial
affairs of the Company. The Company may also have a Director of Internal Audit
who shall be elected by the Board of Directors.
The Company may have a General Counsel who shall be elected by the
Board of Directors and shall have general supervision of all matters of a legal
nature concerning the Company, unless the
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Board of Directors has also elected 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.
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. President. The President 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 have the power to make and execute contracts on the Company's
behalf and to delegate such power to others.
Section 5. Vice Presidents. Each Vice President shall have such
powers and perform such duties as may be assigned to the Vice President by the
Board of Directors or the President. Each Vice President shall have the power to
make and execute contracts on the Company's behalf.
Section 6. Assistant Vice Presidents. An Assistant Vice
President shall perform such duties as may be assigned to him by the Board of
Directors, the President or any Vice 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 or other documents 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 to him by 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 and any Assistant
Secretary or other duly authorized officer may affix the seal of the Company to
such instruments or other documents as may require the same.
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
<PAGE> 13
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 that power to others. The Treasurer shall perform such other duties as
may be assigned to the Treasurer by the Board of Directors, the President or the
Chief Financial Officer and shall report to the Chief Financial Officer or, in
the absence of the Chief Financial Officer, to the President.
In the absence of the Treasurer, an Assistant Treasurer is authorized
to assume the duties herein imposed upon the Treasurer.
Section 9. Controller. The Controller 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 President, such financial statements and
schedules as may be required to keep the Chairman of the Board of Directors, the
President and the Chief Financial Officer 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 President.
In the absence of the Controller, an Assistant Controller is authorized
to assume the duties herein imposed upon the Controller.
Section 10. Director of Internal Audit. The Director of Internal Audit
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 shall perform such other duties as may be assigned to him from time
to time. The Director of Internal Audit shall report to the Chief Executive
Officer or, in the absence of the Chief Executive Officer, to the President.
From time to time at the request of the Audit Committee, the Director of
Internal Audit shall inform that Committee of the auditing activities of the
Company.
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 in writing or by
electronic transmission to the Company 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. Unless otherwise stated
in the resignation, 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 or if the number of directors is increased, then a majority of
the directors then in office, although less than a quorum, or a sole remaining
director, may elect any qualified person to fill such vacancy or newly created
directorship. In the case of a newly created directorship caused by an increase
in the number of directors, the person so elected shall hold office until the
expiration of the term of the class of directors to which he or she has been
elected. 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
<PAGE> 14
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 elect 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.
ARTICLE VII
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 or Vice 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 were 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
Delaware law.
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 and
subject to any applicable transfer restrictions noted conspicuously thereon, 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 prove that it was lost, stolen or destroyed. The person shall
also, if required by the Treasurer or Secretary of the Company, deliver to the
Company a bond, sufficient to 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
<PAGE> 15
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
elect such transfer agents and registrars of transfers as it may deem necessary,
and may require all stock certificates to bear the signature of either or both.
ARTICLE VIII
SEAL
The Board of Directors shall provide a suitable seal containing the name of the
Company, the year "1986", and the words "CORPORATE SEAL, DELAWARE", or other
appropriate words. The Secretary shall have custody of the seal.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Company for each year shall end on December 31 in each
year or shall end on such other date as may be determined by the Audit Committee
from time to time.
ARTICLE X
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 at any
regular or special meeting of the Board of Directors.
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.
<PAGE> 16
ARTICLE XI
EMERGENCY BY-LAWS
Section 1. Emergency By-Laws. This Article XI 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
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 XI 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 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 XI, 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 XI, the Board of Directors or the committees thereof, as the
case may be, may modify, amend or add to the provisions of this Article XI 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 XI shall be liable
except for willful misconduct.
Section 6. Repeal or Change. The provisions of this Article XI 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 XI with regard to action taken prior to
the time of such repeal or change.
