Exhibit
3.2
BY-LAWS OF
McDONALD'S CORPORATION
AS
AMENDED AND RESTATED
WITH
EFFECT AS OF NOVEMBER 9, 2006
ARTICLE I - OFFICES
Section 1 - Registered Office
- The registered office of McDonald’s Corporation shall be maintained at the
office of the Corporation’s registered agent, in the City of Dover, in the
County of New Castle, in the State of Delaware. The Corporation’s registered
agent in Delaware is The Prentice Hall Corporation System, Inc.
Section 2 - Other Offices
- The Corporation may also have an office in the Village of Oak Brook, State
of
Illinois, and may also have other offices, either within or without the State
of
Delaware, at such place or places as the Board of Directors may from time to
time appoint or the business of the Corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section
1- Place of Meetings - The Annual Meeting of Stockholders and
any other meetings of stockholders shall be held at such place as may from
time
to time be determined by the Board of Directors and set forth in a notice
thereof.
Section
2 - Presiding Officer, Order of Business - The Chairman of the Board, or in
his or her absence, such officer as designated in Article IV of these By-Laws,
shall act as chairman of and preside at any meeting of the stockholders. The
Chairman shall determine the order of business and the procedure at the meeting,
including the determination of the date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at such
meeting and such other regulation of the manner of voting and the conduct of
discussion as he or she determines to be reasonably in order. The Chairman
may
adjourn any meeting of stockholders, whether pursuant to Section 7 of this
Article II or otherwise, and notice of such adjournment need be given only
if
required by law.
Section 3 - Annual Election of Directors
- The Annual Meeting of Stockholders for the election of Directors and the
transaction of other business shall be held each year on the date determined
by
the Board of Directors. If this date shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect Directors to succeed
those whose terms then expire and may transact any other proper business. Any
previously scheduled meeting of the stockholders may be postponed by resolution
of the Board of Directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
Section 4 - Voting
- Each stockholder entitled to vote in accordance with the terms of the
Certificate of Incorporation and in accordance with the provisions of these
By-Laws shall be entitled to one vote (or such lesser number of votes as may
be
provided with respect to holders of any series of Preferred Stock in a
resolution of the Board of Directors adopted pursuant to the Certificate of
Incorporation), in person or by proxy, for each share of stock entitled to
vote
held by such stockholder but no proxy shall be voted after three (3) years
from
its date unless such proxy provides for a longer period. Any motion brought
before a stockholder meeting must be seconded before a vote will be taken.
All
votes by stockholders on proposed amendments to
1
the
Certificate of Incorporation and all elections of Directors, shall be by written
ballot. All elections for Directors shall be decided as described in Section
5
of this Article II; all other questions shall be decided by majority vote of
the
shares entitled to vote on the subject matter and present, in person or by
proxy, at the meeting, except as otherwise provided by the Certificate of
Incorporation, these By-Laws or the laws of the State of Delaware; and where
a
separate vote by class is required, the affirmative vote of the majority of
shares of such class present in person or represented by proxy at the meeting
shall be the act of such class.
Section
5 - Voting for Directors
- A
nominee for Director shall be elected to the Board of Directors if the votes
cast for such nominee’s election exceed the votes cast against such nominee’s
election; provided, however, that Directors shall be elected by a plurality
of
the votes cast at any meeting of stockholders for which (i) the Secretary
of the
Corporation receives a notice that a stockholder has nominated a person for
election to the Board of Directors in compliance with the advance notice
requirements for stockholder nominees for Director set forth in Section 11
of
this Article II; and (ii) such nomination has not been withdrawn by such
stockholder on or prior to the tenth (10th)
day
preceding the date the Corporation first mails its notice of meeting for
such
meeting to the stockholders. If Directors are to be elected by a plurality
of
the votes cast, stockholders shall not be permitted to vote against a nominee.
Section
6 - Submission of Information by Director Nominees
- To be
eligible to be a nominee for election or re-election as a Director of the
Corporation, a person must deliver to the Secretary at the principal executive
offices of the Corporation the following information:
(i)
a
statement whether such person, if elected or re-elected as a Director, intends
to tender, promptly following such person’s election or re-election, an
irrevocable resignation effective upon such person’s failure to receive the
required vote for re-election at the next meeting at which such person would
face re-election and upon acceptance of such resignation by the Board of
Directors, in accordance with a publicly disclosed policy adopted by the
Board
of Directors in this regard;
(ii)
a
statement whether such person is a party to any agreement, arrangement or
understanding with, or has given any commitment or assurance to, any person
or
entity as to how such person will act or vote as Director on any issue or
question (a “Voting Commitment”) that has not been disclosed to the Corporation
or any Voting Commitment that could limit or interfere with such person’s
ability to comply with such person’s fiduciary duties as Director under
applicable law; and whether such person, if elected or re-elected, intends
to
refrain in the future from entering into such a Voting Commitment that would
not
be disclosed to the Corporation or that could limit or interfere with such
person’s ability to comply with such person’s fiduciary duties as Director under
applicable law;
(iii)
a
statement whether such person is a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect
to any direct or indirect compensation, reimbursement or indemnification
in
connection with service or action as a Director that has not been disclosed
to
the Corporation; and whether such person, if elected or re-elected as a
Director, intends to refrain in the future from entering into any such
non-disclosed agreement, arrangement or understanding; and
(iv)
a
statement whether such person, if elected or re-elected as a Director, intends
to comply with all publicly disclosed policies and guidelines of the Corporation
with respect
2
to
codes
of conduct, corporate governance, conflict of interest, confidentiality,
stock
ownership and trading applicable to Directors of the Corporation.
The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility
of
such proposed nominee to serve as an independent Director of the Corporation
or
that could be material to a reasonable stockholder’s understanding of the
independence, or lack thereof, of such nominee.
Section 7 - Quorum
- At all
meetings of stockholders, except as otherwise required by law, by the
Certificate of Incorporation, or by these By-Laws, a majority of the shares
entitled to vote, whether present in person or represented by proxy, shall
constitute a quorum. Whether or not there is such a quorum present at any
meeting, the chairman of the meeting or a majority of the shares so present
or
represented, shall have power to adjourn the meeting from time to time. No
notice of the time and place of adjourned meetings need be given except as
required by law. At any such adjourned meeting at which the requisite amount
of
stock entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. If
the
adjournment is for more than thirty (30) days or if after the adjournment
a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at
the
meeting.
Section
8 - Special Meetings
-
Special meetings of the stockholders for any purpose or purposes may be called
only by the Board of Directors pursuant to a resolution approved by a majority
of the Board of Directors and shall be called by the Secretary in accordance
with any such resolution.
Section 9 - Notice of Meetings
-
Written or printed notice stating the place, date, and hour of the meeting
and
the purpose or purposes for which the meeting is called, shall be given by
the
Secretary to each stockholder entitled to vote thereat at his address as
it
appears on the records of the Corporation not less than ten (10) nor more
than
sixty (60) days before the date of the meeting. Business transacted at any
special meeting shall be confined to the purpose or purposes stated in the
notice of such special meeting.
Section 10 - No Action Without Meeting
- Any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders
of
the Corporation and may not be effected by any consent in writing by such
stockholders.
Section
11 - Nomination and Stockholder Business
-
(A) Annual Meetings of Stockholders
- (1)
Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders at an annual
meeting of stockholders may be made (a) pursuant to the Corporation's notice
of
meeting, (b) by or at the direction of the Board of Directors, or (c) by
any
stockholder of the Corporation who (i) is a stockholder of record at the
time of
giving notice provided for in this Section 11 and at the time of the annual
meeting of stockholders; (ii) is entitled to vote at the meeting; and (iii)
complies with the notice procedures set forth in this Section 11.
(2)
For
nominations or other business to be properly brought before an annual meeting
by
a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section
11,
such business, as determined by the Chairman of the meeting, must be a
proper
subject for
3
stockholder
action under Delaware corporation law, and the stockholder must have given
timely notice of such nomination or other business in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered
to
the Secretary at the principal executive offices of the Corporation not
earlier
than the close of business on the one hundred twentieth (120th)
day and
not later than the close of business on the ninetieth (90th)
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 (30) days before or more than sixty (60) days after such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the one hundred twentieth (120th) day prior
to
such annual meeting and not later than the close of business on the later
of the
ninetieth (90th) day prior to such annual meeting and the tenth (10th)
day
following the date on which public announcement of the date of such meeting
is
first made by the Corporation. In no event shall the public announcement
of an
adjournment of an annual meeting commence a new time period for the giving
of a
stockholder’s notice as described above. To be in proper form, a stockholder's
notice to the Secretary must set forth the following:
(a)
as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or business proposal is made:
(i)
the
name and address of such stockholder, as it appears on the Corporation’s books,
and of such beneficial owner, if any;
(ii)
the
class or series and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and beneficial owner, if any,
as
of the date of such notice (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than ten (10) days after
the
record date for the meeting to disclose such ownership as of the record date);
and
(iii)
any
other information relating to such stockholder and beneficial owner, if any,
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the elec-tion of directors in a contested
election pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder (the "Exchange
Act");
(b)
as to
a notice relating to any business other than the nomination of a Director
that
the stockholder proposes to bring before the meeting:
(i)
a
brief description of the business desired to be brought before the meeting,
the
reasons for conducting such business at the meeting, and any material interest
of such stockholder or beneficial owner, if any, in such business;
(ii)
a
representation as to whether or not the stockholder or beneficial owner,
if any,
will solicit proxies in support of such proposed business from the holders
of at
least the percentage of voting shares required under applicable law to carry
the
proposed business (a “Business Solicitation Notice”); and
(iii)
a
description of all agreements, arrangements and understandings between such
stockholder and beneficial owner, if any, and any other person or persons
(including their names) in connection with the proposal of such business
by such
stockholder; and
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(c)
as to
a notice relating to the nomination of a Director, as to each person whom
the
stockholder and beneficial owner, if any, proposes to nominate for election
or
re-election as a Director:
(i)
all
information relating to such person that would be required to be disclosed
in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14
of the
Exchange Act (including such person’s written consent to being named in the
proxy statement as a nominee and to serving as a Director if
elected);
(ii)
a
representation as to whether or not the stockholder or beneficial owner,
if any,
will solicit proxies in support of such proposed nominee from the holders
of a
sufficient number of voting shares reasonably believed by such stockholder
or
beneficial owner to be sufficient to elect such nominee (a “Nominee Solicitation
Notice”); and
(iii)
all
other information required to be submitted by nominees pursuant to Section
6 of
this Article II.
(3)
Notwithstanding anything in the second sentence of paragraph (A)(2) of this
Section 11 to the contrary, in the event that the number of Directors to
be
elected to the Board of Directors of the Corporation is increased and there
is
no public announcement by the Corporation naming all of the nominees for
Directors or specifying the size of the increased Board of Directors made
by the
Corporation at least one hundred (100) days prior to the first anniversary
of
the preceding year's annual meeting, a stockholder's notice required
by this Section 11 shall also be considered timely, but only with respect
to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the tenth (10th) day following the
day
on which such public announcement is first made by the
Corporation.
(B) Special Meetings of Stockholders
- Only
such business shall be conducted at a special meeting of stockholders as
shall
have been brought before the meeting of stockholders pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
Directors are to be elected pursuant to the Corporation's notice of meeting
(a)
by or at the direction of the Board of Directors or (b) provided that the
Board
of Directors has determined that Directors shall be elected at such meeting,
by
any stockholder of the Corporation who (i) is a stockholder of record at
the
time of giving of notice provided for in this Section 11 and at the time
of the
special meeting, (ii) is entitled to vote at the meeting and (iii) complies
with
the notice procedures set forth in this Section 11. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or
more
Directors to the Board of Directors, any such stockholder may nominate a
person
or persons (as the case may be) for election to the Board of Directors as
specified in the Corporation’s notice of meeting, if the stockholder's notice
required by paragraph (A)(2) of this Section 11 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier
than
the close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the later of
the
ninetieth (90th) day prior to such special meeting and the tenth (10th) day
following the day on which public announcement is first made of the date
of the
special meeting and of the nominees proposed by the Board of Directors to
be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving
of a
stockholder’s notice as described above.
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(C) General
- (1)
Only such persons who are nominated in accordance with the procedures set
forth
in this Section 11 shall be eligible to serve as Directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in
this
Section 11. A person nominated by a stockholder for election as Director
shall
not be eligible to serve as a Director if the stockholder or beneficial owner,
as applicable, failed to comply with the representations made in the Nominee
Solicitation Notice applicable to such person. Except as otherwise provided
by
law, the Certificate of Incorporation or these By-Laws, 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
11 and,
if any proposed nomination or business is not in compliance with this Section
11
or if the stockholder or beneficial owner, if any, fails to comply with the
representations made in the Business Solicitation Notice or Nominee Solicitation
Notice, as applicable, to declare that such proposal shall be
disregarded.
(2)
For
purposes of this Section 11, "public announcement" shall mean disclosure
in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section
13,
14 or 15(d) of the Exchange Act.
(3)
Notwithstanding the foregoing provisions of this Section 11, a stockholder
shall
also comply with all applicable requirements of the Exchange Act and the
rules
and regulations thereunder with respect to the matters set forth in this
Section
11. Nothing in this Section 11 shall be deemed to affect any rights of (i)
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock if and to the extent provided for under
the
law, the Certificate of Incorporation or these By-Laws.
ARTICLE III - DIRECTORS
Section 1 - Number and Term
- The
number of Directors who shall constitute the whole Board of Directors shall
be
the number fixed from time to time by the Board of Directors in accordance
with
the Certificate of Incorporation and shall in no event be less than eleven
(11)
nor more than twenty-four (24). The Directors shall be divided into three
classes, as nearly equal in number as possible. Directors shall be elected
for a
term of office expiring at the third succeeding Annual Meeting of Stockholders
after their election and until their successors shall be elected and shall
qualify.
Section 2 - Resignations
- Any
Director or member of a committee of the Board of Directors may resign at
any
time. Such resignation shall be made in writing and shall take effect at
the
time specified therein and if no time be specified, at the time of its receipt
by the Secretary. The acceptance of a resignation shall not be necessary
to make
it effective unless the resignation requires acceptance.
Section 3 - Newly-Created Directorships and Vacancies
-
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, newly-created directorships resulting from any increase in the
authorized number of Directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal
from
office or other cause shall be filled by a majority vote of the Directors
then
in office, though less than a quorum. Directors so chosen shall hold office
for
a term expiring at the Annual Meeting of Stockholders at which the term of
the
class to which they have been elected expires and until their
6
successors
shall be elected and shall qualify. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
Section 4 - Removal
-
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any Director, or the entire Board of Directors, may be removed
from
office at any time but only for cause and only by the affirmative vote of
the
holders of eighty percent (80%) of the voting power of all of the shares
of the
Corporation entitled to vote for the election of Directors.
Section
5 - Chairman of the Board and Presiding Director
- The
Board of Directors shall annually elect one of its members to be Chairman
of the
Board and shall fill any vacancy in the position of the Chairman of the Board
at
such time and in such manner as the Board of Directors shall determine. The
Chairman of the Board may, but need not, be an officer of, or employed in
an
executive or any other capacity by, the Corporation. If the Chairman of the
Board is an officer of, or employed in an executive or any other capacity
by,
the Corporation, the Board of Directors also shall elect a Presiding Director.
The Presiding Director shall not be an officer of, or employed in an executive
or any other capacity by, the Corporation.
In
addition to presiding at all meetings of the stockholders of the Corporation
and
of the Board of Directors, the Chairman of the Board shall see that all orders,
resolutions, and policies adopted or established by the Board of Directors
are
carried into effect; and the Chairman of the Board shall do and perform such
other duties as from time to time may be assigned to the Chairman of the
Board
by the Board of Directors.
Section 6 - Powers
- The
Board of Directors shall exercise all of the powers of the Corporation, except
such as are by law or by the Certificate of Incorporation of the Corporation
or
by these By-Laws conferred upon or reserved to the stockholders.
Section 7 - Committees
-
(A) Committees of the Board
- The
Board of Directors may, by resolution or resolutions passed by a majority
of
Directors present at any meeting at which there is a quorum, designate one
or
more committees, each committee to consist of two or more of the Directors
of
the Corporation which, to the extent provided in said resolution or resolutions
or in these By-Laws shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Corporation
and
may have power to authorize the seal of the Corporation to be affixed to
all
papers which may require it.
(B) Limitation on Committee Authority
- No
committee shall have the power or authority of the Board of Directors in
refer-ence to (i) approving or adopting, or recommending to the stockholders,
any action or matter expressly required by the Delaware General Corporation
Law
(the “DGCL”) to be submitted to stockholders for approval; or (ii) adopting,
amending or repealing the By-Laws of the Corporation.
(C) Procedural Provisions
- A
majority of the members of a committee shall constitute a quorum for the
transaction of business, and the act of a majority of such members present
at
any meeting at which there is a quorum shall be the act of such committee.
If at
any meeting of a committee there shall be less than a quorum present, a majority
of those members present may adjourn the meeting from time to time until
a
quorum is obtained, and no further notice thereof need be given other than
by
announcement at the meeting which shall be so adjourned.
7
The
Board
of Directors may designate one or more Directors as alternate members of
any
committee who may replace any absent or disqualified member at any meeting
of
the committee. Such committee or committees shall have such name or names
as may
be stated in these By-Laws or as may be determined from time to time by
resolution adopted by the Board of Directors.
Each
committee shall keep regular minutes of its proceedings and report its acts
and
proceedings to the Board.
Section 8 - Meetings
Regular
meetings of the Board of Directors may be held without notice at such places,
within or without the State of Delaware, and times as shall be determined
from
time to time by resolution of the Directors.
Special
meetings of the Board of Directors may be called by the Chairman of the Board
or
the Chief Executive Officer and shall be called by the Secretary at the
direction of the Chairman of the Board or the Chief Executive Officer or
on the
written request of any two (2) Directors on notice to each Director sent
at
least twenty-four (24) hours prior to each such meeting. Notice of each such
meeting shall be delivered personally to each Director or sent by telegram,
telex, or electronic mail to such a place as designated from time to time
by
each Director or, in the absence of any such designation, to the Director's
last
known place of business or residence. Any such meeting shall be held at such
place or places, within or without the State of Delaware, and times as may
be
determined by the Directors or as shall be stated in the notice.
Section 9 - Quorum
- A
majority of the Directors shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting
at
which there is a quorum shall be the act of the Board of Directors, except
as
may be otherwise specifically provided by the Certificate of Incorporation,
the
laws of the State of Delaware, or these By-Laws. If at any meeting of the
Board
of Directors there shall be less than a quorum present, a majority of those
present may adjourn the meeting from time to time until a quorum is obtained
and
no further notice thereof need be given other than by announcement at the
meeting which shall be so adjourned.
Section 10 - Compensation
- No
employee of the Corporation shall receive any additional compensation or
remuneration for serving as a member of the Board of Directors. By resolution
of
the Board of Directors, those members of the Board of Directors who are not
otherwise employed by the Corporation may receive a fixed fee, payable
quarterly, together with a fee for attendance at each meeting. For purposes
of
this Section, members of the Board of Directors who serve the Corporation
in
capacities such as outside consultants, attorneys, or business advisors,
shall
not be considered by virtue of such service as being employed by the
Corporation. Nothing herein contained shall be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, or otherwise and receiving compensation therefor.
Section 11 - Action Without Meeting
- Unless
otherwise restricted by the Certificate of Incorporation or the By-Laws,
any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof, may be taken without a meeting if
all
members of the Board of Directors, or of such committee, as the case may
be,
consent thereto in writing
8
and
such
written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
ARTICLE IV - OFFICERS
Section 1 - Designation
- The
Corporation shall have a Chief Executive Officer. In addition, the Corporation
shall have such other officers with such titles and duties as shall be stated
in
these By-Laws or in a resolution of the Board of Directors which is not
inconsistent with these By-Laws and as may be necessary to enable he or she
to
sign instruments and stock certificates which comply with the DGCL. One of
the
officers of the Corporation shall have the duty to record the proceedings
of the
meetings of the stockholders and Directors in a book to be kept for that
purpose. Officers shall be chosen in such manner and shall hold their offices
for such terms as are prescribed in these By-Laws or determined by the Board
of
Directors. None of the officers, except the Chief Executive Officer need
be
Directors. One person may hold more than one office at the same time provided
the duties of such officer may be properly and consistently performed by
one
person.
Section
2 - Chief Executive Officer
- The
Chief Executive Officer shall have responsibility for the general and active
management of the business of the Corporation and shall do and perform such
other duties as from time to time may be assigned to the Chief Executive
Officer
by the Board of Directors. In the event of the inability of the Chairman
of the
Board to act, the Chief Executive Officer shall preside at all meetings of
the
stockholders of the Corporation and of the Board of Directors of the
Corporation.
ARTICLE V - INDEMNIFICATION AND INSURANCE
Section 1 - Right to Indemnification
-
(A) Indemnified Persons
- Each
person who was or is made a party or is threatened to be made a party to
or is
involved in or called as a witness in any Proceeding by reason of the fact
that
he or she is an Indemnified Person, shall be indemnified and held harmless
by
the Corporation to the fullest extent permitted under the DGCL, as the same
now
exists or may hereafter be amended (but, in the case of any such amendment,
only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than the DGCL permitted the Corporation to provide
prior
to such amendment). Such indemnification shall cover all expenses incurred
by an
Indemnified Person (including, but not limited to, attorneys' fees and other
expenses of litigation) and all liabilities and losses (including, but not
limited to, judgments, fines, ERISA or other excise taxes or penalties and
amounts paid or to be paid in settlement) incurred by such person in connection
therewith.
(B) Additional Indemnified Persons
- (1)
Each Additional Indemnified Person who was or is made a party or is threatened
to be made a party to or is involved in or called as a witness in any Proceeding
(other than an action by or in the right of the Corporation) by reason of
the
fact that he or she is an Additional Indemnified Person shall be indemnified
and
held harmless by the Corporation against expenses (including, but not limited
to, attorneys' fees and other expenses of litigation) and all liabilities
and
losses (including, but not limited to, judgments, fines, ERISA or other excise
taxes or penalties and amounts paid or to be paid in settlement) incurred
by
such person in connection therewith if such Additional Indemnified Person
acted
in Good Faith. The termination of any Proceeding by judgment, order, settlement,
conviction or
9
upon
a
plea of nolo contendere or its equivalent shall not of itself create a
presumption that an Additional Indemnified Person did not act in Good
Faith.
(2)
Each
Additional Indemnified Person who was or is made a party or is threatened
to be
made a party to or is involved in or called as a witness in any Proceeding
brought by or in the right of the Corporation to procure a judgment in its
favor
by reason of the fact that he or she is an Additional Indemnified Person
shall
be indemnified and held harmless by the Corporation against expenses (including,
but not limited to, attorneys' fees and other expenses of litigation) incurred
by such person in connection therewith if such Additional Indemnified Person
acted in Good Faith, except that no indemnification shall be made in respect
of
any claim, issue or matter as to which such person shall have been adjudged
to
be liable for negligence or misconduct in the performance of such person's
duty
to the Corporation unless and only to the extent that the Court of Chancery
of
the State of Delaware or the court in which such Proceeding shall have been
brought or is pending shall determine upon application that despite the
adjudication of liability but in view of all the circumstances of the case,
such
Additional Indemnified Person is fairly and reasonably entitled to indemnity
for
such expenses which such Court of Chancery or such other court shall deem
proper.
(3)
Any
indemnification under paragraphs (B)(1) or (B)(2) of this Section 1 (unless
ordered by a court) shall be made by the Corporation unless it is determined
that indemnification of the Additional Indemnified Person is not proper in
the
circumstances because such person has not met the applicable standard of
conduct
set forth in either paragraph (B)(1) or (B)(2) of this Section 1. Such
determination shall be made: (a) by the Board of Directors of the Corporation
by
a majority vote of a quorum consisting of Directors who are not parties to
such
Proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable
if
a quorum of disinterested Directors so directs, by independent legal counsel
in
a written opinion. Such determination shall be made within one hundred twenty
(120) days (or such longer period established as set forth in the next sentence)
after receipt by the Board of Directors of written notice from the Additional
Indemnified Person seeking indemnification setting forth in reasonable detail
the facts known to such person concerning the Proceeding. The period during
which the Board of Directors may deter-mine that indemnification is not proper
may be extended to a period established by the Board of Directors by written
notice to the Additional Indemnified Person delivered to such person within
one
hundred twenty (120) days after receipt by the Board of Directors of such
person's written notice seeking indemnification.
(C)
Denial of Authorization for Certain Proceedings
-
Notwithstanding anything to the contrary in this Article V, except with respect
to indemnification of Indemnified Persons specified in Section 3 of this
Article
V, the Corporation shall indemnify an Indemnified Person or Additional
Indemnified Person in connection with a Proceeding (or part thereof) initiated
by such person only if (i) authorization for such Proceeding (or part thereof)
was not denied by the Board of Directors of the Corporation prior to the
earlier
of (x) sixty (60) days after receipt of written notice thereof from such
Indemnified Person or one hundred twenty (120) days after receipt of written
notice thereof from such Additional Indemnified Person, as the case may be,
or
(y) a Change of Control, and (ii) in the case of a Proceeding initiated by
an
Additional Indemnified Person, it is not a Proceeding to enforce rights under
this Article V.
(D)
Certain Defined Terms
- For
purposes of this Article V, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and
plural
forms of the terms defined):
10
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(i)
|
a
"Proceeding" is any investigation, action, suit or proceeding,
whether
civil, criminal, administrative or investigative, and any appeal
therefrom;
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(ii)
|
an
"Indemnified Person" is a person who is, was, or had agreed to
become (A)
a Director or officer of the Corporation or (B) an employee or
a Delegate,
as defined herein, of the Corporation (but, except as included
within
clause (A), with respect to such employees and Delegates and persons
agreeing to become employees of the Corporation or Delegates only
as to
Proceedings occurring after a Change of Control, as defined herein,
arising out of acts, events or omissions occurring prior or subsequent
to,
or simultaneously with, such Change of Control), or the legal
representative of any of the
foregoing;
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(iii)
|
"Delegate"
shall mean any employee of the Corporation serving (A) as a director
or
officer (or in a substan-tially similar capacity) of an entity
or
enterprise (x) in which the Corporation directly or indirectly
owns a l0%
or greater equity interest or (y) the principal function of which
is to
service or benefit the Corporation or its licensees; (B) as a trustee
or
fiduciary of an employee benefit plan of the Corporation or any
entity or
enterprise referred to in clause (A); or (C) at the request of
the
Corporation in any capacity with any entity or enterprise other
than the
Corporation;
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(iv)
|
a
"Change of Control" shall be deemed to have occurred if (A) any
"Person"
(as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes (except in a transaction
approved in advance by the Board of Directors of the Corporation)
the
beneficial owner (as defined in Rule 13d-3 under such Act), directly
or
indirectly, of securities of the Corporation representing 20% or
more of
the combined voting power of the Corporation's then outstanding
securities, or (B) during any period of two consecutive years,
individuals
who at the beginning of such period constitute the Board of Directors
of
the Corporation cease for any reason to constitute at least a majority
thereof unless the election of each Director who was not a Director
at the
beginning of the period was approved by a vote of at least two-thirds
of
the Directors then still in office who were Directors at the beginning
of
the period;
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(v)
|
an
"Additional Indemnified Person" is a person who is, was, or had
agreed to
become a Delegate or employee of the Corporation and who is not
an
Indemnified Person; and
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(vi)
|
"Good
Faith" shall mean with respect to any Additional Indemnified Person
that
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation
or in the best interests of any entity or enterprise as to which
such
person is or was a Delegate, and, with respect to any criminal
Proceeding,
such person had no reasonable cause to believe such conduct was
unlawful.
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Section 2 - Expenses
-
Expenses, including attorneys' fees and disbursements, reasonably and actually
incurred by a person indemnified pursuant to Section 1 of this Article V
in
defending or
11
otherwise
being involved in a Proceeding shall be paid by the Corporation in advance
of
the final disposition of such Proceeding, including any appeal therefrom,
upon
receipt of an undertaking in the form required by the Corporation (the
"Undertaking") by or on behalf of such person to repay such amount if it
shall
ultimately be determined that he or she is not entitled to be indemnified
by the
Corporation and subject to such other terms and conditions as the Corporation
deems appropriate; provided, that (A) if a Change of Control has occurred,
such
person shall be required to deliver to the Corporation the Undertaking only
if
such an undertaking is required under the DGCL then in effect, and (B) in
connection with a Proceeding (or part thereof) initiated by such person,
except
a Proceeding authorized by Section 3 of this Article V, the Corporation shall
pay said expenses in advance of final disposition only if authorization for
such
Proceeding (or part thereof) was not denied by the Board of Directors of
the
Corporation prior to the earlier of (i) sixty (60) days in the case of an
Indemnified Person, or one hundred twenty (120) days in the case of an
Additional Indemnified Person, after receipt of a written request for such
advancement accompanied by the Undertaking or (ii) a Change of Control. A
person
to whom expenses are advanced pursuant hereto shall not be obligated to repay
pursuant to the Undertaking until the final determination of any pending
Proceeding in a court of competent jurisdiction concerning the right of such
person to be indemnified or the obligation of such person to repay such
expenses.
Section 3 - Protection of Rights
- If a
proper claim by an Indemnified Person under Section 1 of this Article V is
not
paid in full by the Corporation within one hundred twenty (120) days after
a
written claim for indemnification has been received by the Corporation or
if
expenses pursuant to Section 2 of this Article V have not been advanced by
the
Corporation within sixty (60) days after a written request for such advancement
by an Indemnified Person (accompanied by the Undertaking if required by Section
2 of this Article V) has been received by the Corporation, the claimant may
at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim or the advancement of expenses. If successful, in whole
or
in part, in such suit, such claimant shall also be entitled to be paid the
reasonable expense thereof including attorneys’ fees and disbursements. It shall
be a defense to any such action (other than an action brought to enforce
a claim
for expenses incurred in defending any Proceeding in advance of its final
disposition where the Undertaking has been tendered to the Corporation) (or,
if
a Change of Control has occurred, the Undertaking is not required to be tendered
to the Corporation under the DGCL) that indemnification of the claimant is
prohibited by law, but the burden of proving such defense shall be on the
Corporation. If a Change of Control has occurred, a claimant making a claim
under Section 1 of this Article V or seeking to avoid repayment to the
Corporation of expenses advanced pursuant to Section 2 of this Article V
shall
have (i) the right, but not the obligation, to have a determination made
by
independent legal counsel, at the expense of the Corpora-tion, as to whether
indemnification of the claimant is prohibited by law; and (ii) shall have
the
right (A) to select as independent legal counsel to make such determination
any
legal counsel designated for such purpose in a resolution adopted by the
Board
of Directors that is in full force and effect immediately prior to the Change
of
Control or (B), if the Board of Directors has failed to designate any such
legal
counsel or all such counsel refuse to make such a determination, to request
the
American Arbitration Association, at the expense of the Corporation, to select
an independent legal counsel familiar with matters of the type in dispute
to
make such a determination. If a determination has been made in accordance
with
the preceding sentence, no determination inconsistent therewith by other
legal
counsel, by the Board of Directors, or by stockholders shall be of any force
or
effect. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination, if required, prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders)
12
that
indemnification of the claimant is prohibited, shall be a defense to the
action
or create a presumption that indemnification of the claimant is
prohibited.
Section 4 - Miscellaneous
-
(A) Non-Exclusivity of Rights
- The
rights conferred on any person by this Article V shall not be exclusive of
any
other rights which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Law, agreement, vote of
stockholders or disinterested Directors or otherwise.
(B) Insurance, contracts, and funding
- The
Corporation may maintain insurance, at its expense, to protect itself and
any
Director, officer, Delegate, employee, or agent of, the Corporation against
any
expenses, liabilities or losses, regardless of whether the Corporation would
have the power to indemnify such person against such expenses, liabilities
or
losses under the DGCL. The Corporation hereby agrees that, for a period of
six
(6) years after any Change of Control, it shall cause to be maintained policies
of directors' and officers' liability insurance providing coverage at least
comparable to and in the same amounts as that provided by any such policies
in
effect immediately prior to such Change of Control. The Corporation may enter
into contracts with any Director, officer, Delegate or employee of the
Corporation in furtherance of the provisions of this Article V and may create
a
trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as
may be
necessary to effect the advancing of expenses and indemnification as provided
in
this Article V.
(C) Contractual nature
- The
provisions of this Article V as amended effective January 26, 2006 shall
be
applicable with respect to events, acts and omissions occurring prior to
or
subsequent to such Amendment, and shall continue as to a person who has ceased
to be a Director, officer, Delegate or employee and shall inure to the benefit
of the heirs, executors and administrators of such person. This Article V
shall
be deemed to be a contract between the Corporation and each person who, at
any
time that this Article V as so amended is in effect, serves or agrees to
serve
in any capacity which entitles him to indemnification hereunder and any repeal
or other modification of this Article V or any repeal or modification of
the
DGCL or any other applicable law shall not limit any rights of indemnification
for Proceedings then existing or arising out of events, acts or omissions
occurring prior to such repeal or modification, including, without limitation,
the right to indemnification for Proceedings commenced after such repeal
or
modification to enforce this Article V with regard to Proceedings arising
out of
acts, omissions or events arising prior to such repeal or
modification.
(D) Cooperation
- Each
Indemnified Person and Additional Indemnified Person shall cooperate with
the
person, persons or entity making the determination with respect to such
Indemnified Person's or Additional Indemnified Person's entitlement to
indemnification under this Article V, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure
and
which is reasonably available to such Indemnified Person or Additional
Indemnified Person and reasonably necessary to such determination. Any costs
or
expenses (including attorneys' fees and disbursements) incurred by such
Indemnified Person or Additional Indemnified Person in so cooperating with
the
person, persons or entity making such determination shall be borne by the
Corporation (irrespective of the determination as to such Indemnified Person's
or Additional Indemnified Person's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold such Indemnified Person
or
Additional Indemni-fied Person harmless therefrom.
13
(E) Subrogation
- In the
event of any payment under this Article V to an Indemnified Person or Additional
Indemnified Person, the Corporation shall be subrogated to the extent of
such
payment to all of the rights of recovery of such Indemnified Person or
Additional Indemnified Person, who shall execute all papers required and
take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
(F) Severability
- If
this Article V, or any portion hereof shall be invalidated or held to be
unenforceable on any ground by any court of competent jurisdiction, the
decision
of which shall not have been reversed on appeal, this Article V shall be
deemed
to be modified to the minimum extent necessary to avoid a violation of
law and,
as so modified, this Article V and the remaining provisions hereof shall
remain
valid and enforceable in accordance with their terms to the fullest extent
permitted by law.
ARTICLE VI - MISCELLANEOUS
Section 1 - Certificates of Stock
- Every
holder of stock in the Corporation shall be entitled to have a certificate
signed by or in the name of the Corporation by the Chairman of the Board,
Chief
Executive Officer or a President or a Vice President and by the Treasurer
or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
If
such certificate is countersigned (l) by a transfer agent or (2) by a registrar,
any other signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature
has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by
the
Corporation with the same effect as if he were such officer, transfer agent,
or
registrar at the date of issue.
Section 2 - Lost Certificates
- A new
certificate of stock may be issued in the place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen, or destroyed;
and
the Directors may, in their discretion, require the owner of the lost, stolen,
or destroyed certificate, or his legal representative, to give the Corporation
a
bond in such sum as they may direct not exceeding double the value of the
stock
to indemnify the Corporation against any claim that may be made against it
on
account of the alleged loss, theft, or destruction of any such certificate,
or
the issuance of any such new certificate.
Section 3 - Transfer of Shares
- The
shares of stock of the Corporation shall be transferable upon its books by
the
holders thereof in person or by their duly authorized attorneys or legal
representatives by the surrender of the old certificates duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, to the Corporation by the delivery thereof to the person in charge
of
the stock and transfer books and ledgers or to such other person as the
Directors may designate, by whom they shall be canceled; and new certificates
shall thereupon be issued. A record shall be made of each transfer and a
duplicate thereof mailed to the Delaware office; and whenever a transfer
shall
be made for collateral security, and not absolutely, it shall be expressed
in
the entry of the transfer.
Section 4 - Record Date
- In
order that the Corporation may determine the stockholders entitled to notice
of
or to vote at any meeting of stockholders or any adjournment thereof, or
to
express consent to Corporate action in writing without a meeting or entitled
to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion,
or exchange of stock or for the purpose of any other lawful
14
action,
the Board of Directors may fix, in advance, a record date which shall not
precede the date upon which the resolution fixing the record date is adopted
by
the Board of Directors and which shall not be more than sixty (60) nor less
than
ten (10) days before the date of such meeting nor more than sixty (60) days
prior to any other action.
Section 5 - Registered Stockholders
- The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to
vote
as such owner and to hold liable for calls and assessments a person registered
on its books as the owner of shares and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Section 6 - Dividends
-
Subject to the provisions of the Certificate of Incorporation, the Board
of
Directors may, out of funds legally available therefor at any regular or
special
meeting, declare dividends upon the capital stock of the Corporation as and
when
they deem expedient. Dividends may be paid in cash, in property, or in shares
of
the capital stock of the Corporation; and in the case of a dividend paid
in
shares of theretofore unissued capital stock of the Corporation, the Board
of
Directors shall, by resolution, direct that there be designated as capital
in
respect of such shares an amount not less than the aggregate par value of
such
shares and, in the case of shares without par value, such amount as shall
be
fixed by the Board of Directors. Before declaring any dividend, there may
be set
apart out of any funds of the Corporation available for dividends, such sum
or
sums as the Directors from time to time in their discretion deem proper for
working capital or as a reserve fund to meet contingencies or for such other
purposes as the Directors shall deem conducive to the interests of the
Corporation.
Section 7 - Seal
- The
Corporate seal shall be circular in form and shall contain the name of the
Corporation, the year of its creation, and the words, "CORPORATE SEAL DELAWARE.”
Said seal may be used by causing it, or a facsimile thereof, to be impressed
or
affixed or reproduced or otherwise.
Section 8 - Fiscal Year
- The
fiscal year of the Corporation shall begin on the first day of January in
each
year and shall end on the last day of December in each year.
Section 9 - Checks
- All
checks, drafts, or other orders for the payment of money, notes, or other
evidences of indebtedness issued in the name of the Corporation shall be
signed
by such officer or officers, agent or agents of the Corporation and in such
manner as shall be determined from time to time by resolu-tion of the Board
of
Directors.
Section 10 - Notice and Waiver of Notice
-
Whenever any notice is required by these By-Laws to be given, personal
notice is
not meant unless expressly so stated. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder
at his
address as it appears on the records of the Corporation. If delivered by
facsimile, notice is given when verification that such notice was sent
is
received by the sender. Stockholders not entitled to vote shall not be
entitled
to receive notice of any meetings except as otherwise provided by
statute.
Whenever
any notice whatever is required to be given under the provisions of any law
or
under the provisions of the Certificate of Incorporation of the Corporation
or
these By-Laws, a waiver thereof in writing signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall
be deemed equivalent thereto.
15
Section 11 - Ratification by Stockholders
- Any
contract, transaction, or act of the Corporation or of the Directors or of
any
committee which shall be ratified by the holders of a majority of the shares
of
stock of the Corporation present in person or by proxy and voting at any
annual
meeting or at any special meeting called for such purpose, shall, insofar
as
permitted by law or under the provisions of the Certificate of Incorporation
of
the Corporation or these By-Laws, be as valid and binding as though ratified
by
every stockholder of the Corporation.
Section 12 - Interested Directors
- No
contract or transaction between the Corporation and one or more of its Directors
or officers or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors
or
officers are directors or officers or have a financial interest, shall be
void
or voidable solely for this reason or solely because the Director or officer
is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction or solely because his
or
her or their votes are counted for such purpose if:
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(1)
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the
material facts as to his or her relationship or interest and as
to the
contract or transaction are disclosed or are known to the Board
of
Directors or the committee and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes
of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
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(2)
|
the
material facts as to his or her relationship or interest and as
to the
contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders;
or
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(3)
|
the
contract or transaction is fair as to the Corporation as of the
time it is
authorized, approved, or ratified by the Board of Directors, a
committee
thereof, or the shareholders.
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Common
or
interested Directors may be counted in determining the presence of a quorum
at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE VII - AMENDMENTS
The
By-Laws of this Corporation may be made, altered, amended, or repealed by
the
affirmative vote of the holders of two-thirds of the issued and outstanding
shares entitled to vote at any annual or special meeting of the stockholders,
provided that notice of the proposed making, alteration, amendment or repeal
is
included in the notice of the meeting at which such action takes
place.
The
By-Laws of this Corporation may also be made, altered, amended, or repealed
by
the affirmative vote of a two-thirds majority of the Board of Directors at
any
regular or special meeting of the Board of Directors provided that notice
of the
proposed making, alteration, amendment, or repeal to be made is included
in the
notice of the meeting at the which such action takes place. No By-Law shall
be
made, altered, amended, or repealed so as to make such By-Law inconsistent
with
or violative of any provision of the Certificate of Incorporation.
With
effect as of November 9, 2006
16