AMERICAN ITALIAN PASTA COMPANY
BYLAWS
(As Amended And Restated through January 14, 2009)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE IN DELAWARE.
The registered office of American Italian Pasta Company (the "Corporation")
in the State of Delaware is located at 1209 Orange Street, in the City of
Wilmington, in the County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
SECTION 2. OTHER OFFICES.
The Corporation may, in addition to its registered office, establish and
maintain such an office or offices, at such place or places within or without
the State of Delaware, as the Board of Directors may deem necessary, desirable
or expedient from time to time.
ARTICLE II
STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS.
Each meeting of the stockholders shall be held at the principal office of
the Corporation or at such other place, within or without the State of Delaware,
as shall be designated by the Board of Directors in the notice of meeting.
SECTION 2. ANNUAL MEETING.
The annual meeting of the stockholders shall be held pursuant to notice and
at such date and time as shall be designated by the Board of Directors in the
notice of meeting for the purpose of electing directors and for the transaction
of such other business as may come before the meeting.
The Board of Directors may, in its sole discretion, determine that the
annual meeting shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211(a)(2) of the Delaware
General Corporation Law. If so authorized, and subject to such guidelines and
procedures as the Board of Directors may adopt, stockholders and proxyholders
not physically present at such meeting may, by means of remote communication,
participate in a meeting of stockholders, provided that (i) the Corporation
shall implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the Corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder
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votes or takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the Corporation.
SECTION 3. SPECIAL MEETINGS.
Special meetings of the stockholders of the Corporation may be called, for
any purpose or purposes, only by (i) the Chairman of the Board of Directors,
(ii) the Chief Executive Officer or (iii) the Board of Directors pursuant to a
resolution adopted by a majority of the members of the Board of Directors then
in office. Special meetings of the stockholders of the Corporation may not be
called by any other person or persons. Special meetings may be held at any
place, within or without the State of Delaware, as determined by the person or
persons calling such meeting. The only business that may be conducted at such a
meeting, other than procedural matters and matters relating to the conduct of
the meeting, shall be matters relating to the purpose or purposes stated in the
notice of meeting.
SECTION 4. NOTICE OF MEETINGS.
The Secretary or an Assistant Secretary of the Corporation shall give
written notice of every meeting of the stockholders to each stockholder of
record entitled to vote at the meeting. Such notice shall be given not less than
10 days, nor more than 60 days, prior to the day named for the meeting, unless a
different period of notice is required by law. Such notice shall be given either
by regular mail, overnight courier, telegram, electronic or facsimile
transmission, or by any other means comparable to any of the foregoing, to each
stockholder at his address appearing on the books of the Corporation or supplied
by him to the Corporation for the purpose of notice. Any notice given by mail
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Any notice given by telegram, overnight courier, electronic
or facsimile transmission shall be deemed to have been given when it shall have
been delivered for transmission. Such notice shall specify the place, day and
hour of the meeting, the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is held. When a meeting is adjourned to another date, hour or
place in accordance with the Delaware General Corporation Law, as amended (the
"DGCL"), notice need not be given of the adjourned meeting if the date, hour and
place thereof are announced at the meeting at which the adjournment is taken
unless otherwise required by the DGCL.
Without limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the Delaware General Corporation Law,
the Certificate of Incorporation or these bylaws, any notice to stockholders
given by the Corporation under any provision of the Delaware General Corporation
Law, the Certificate of Incorporation or these bylaws shall be effective if
given by a form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by the stockholder
by written notice to the Corporation. Any such consent shall be deemed revoked
if:
(i) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent;
and
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(ii) such inability becomes known to the Secretary or an Assistant
Secretary of the Corporation or to the transfer agent, or other person
responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice;
(ii) if by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice;
(iii) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and
(iv) if by any other form of electronic transmission, when directed to the
stockholder.
An affidavit of the Secretary or an Assistant Secretary or of the transfer
agent or other agent of the Corporation that the notice has been given by a form
of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. Notice by electronic transmission shall
not apply to those Sections of the Delaware General Corporation Law as specified
in Section 232(e) thereof.
SECTION 5. WAIVER OF NOTICE.
Whenever any notice is required to be given under the provisions of the
DGCL, the Certificate of Incorporation or of these bylaws, a waiver of notice in
writing, signed by the person or persons entitled to such notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted nor the purpose of the meeting
need be specified in the waiver of notice or any waiver by electric transmission
of such meeting. Attendance of the person either in person or by proxy at any
meeting shall constitute a waiver of notice of such meeting, except where such
person appears at the meeting only for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened and the person then leaves the meeting.
SECTION 6. RECORD DATE.
In order that the Corporation may determine the stockholders entitled (i)
to notice of or to vote at any meeting of stockholders or any adjournments
thereof, (ii) to receive payment of any dividend or other distribution, or
allotment of any rights, or (iii) to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors, in advance, may fix a date as the record date
for any such determination, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 days nor less
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than 10 days before the date of such meeting, nor more than 60 days prior to the
date of any other action. A determination of the stockholders of record entitled
to notice of or to vote at a meeting of the stockholders shall apply to any
adjournment of the meeting taken pursuant to Article I, Section 8 hereof;
provided, however, that the Board of Directors, in its discretion, may fix a new
record date for an adjourned meeting in accordance with the DGCL and these
Bylaws. If the Board of directors fixes a record date in accordance with the
DGCL and these Bylaws, only stockholders determined to be stockholders of record
on the record date so fixed shall be entitled to notice of, or to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend or
other distribution, or allotment of rights, or to exercise such rights in
respect of such change, conversion or exchange of stock, or to participate in
any such other lawful action, as the case may be, notwithstanding any transfer
of any stock on the books of the Corporation after any such record date fixed as
aforesaid.
SECTION 7. LIST OF STOCKHOLDERS.
At least 10 days before any meetings of the stockholders, the officer or
transfer agent in charge of the stock transfer books of the Corporation shall
prepare and make a complete alphabetical list of the stockholders entitled to
vote at such meeting, which list shall show the address of each stockholder and
the number of shares registered in the name of each stockholder. The list shall
not be required to include electronic mail addresses or other electronic contact
information. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting for a period of at least ten days prior to
the meeting: (i) on a reasonably accessible electronic network provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii), during ordinary business hours, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept open at the meeting
(during the entire duration thereof) and, except as otherwise provided by law,
may be inspected by any stockholder or proxy of a stockholder who is present at
such meeting. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting. The stock ledger shall be the only
evidence as to which stockholders are entitled to examine the stock ledger, the
list of stockholders entitled to vote at a meeting, or the books of the
corporation, and as to which stockholders are entitled to vote in person or by
proxy at any meeting of stockholders.
SECTION 8. QUORUM.
The presence in person or by proxy of the holders of a majority of the
votes represented by issued and outstanding shares entitled to vote at a
stockholders' meeting shall constitute a quorum, except that the presence in
person or by proxy of the holders of a majority of the issued and outstanding
shares of each class or series of stock which is entitled to vote as a class or
series at a stockholders' meeting shall constitute a quorum for any vote in
which a vote of such class or series is required.
When any meeting is convened the presiding officer, if directed by the
Board, may adjourn the meeting if (a) no quorum is present for the transaction
of business, or (b) the Board
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determines that adjournment is necessary or appropriate to enable the
stockholders (i) to consider fully information which the Board determines has
not been made sufficiently or timely available to stockholders or (ii) otherwise
to exercise effectively their voting rights. At any such adjourned meeting at
which there is a quorum, any business may be transacted that might have been
transacted at the meeting originally called.
SECTION 9. STOCKHOLDER PROPOSALS.
Proposals for a stockholder vote for consideration at any annual meeting or
any special meeting of stockholders of the Corporation may be made by any
stockholder of the Corporation (x) who is a stockholder of record on the date of
the giving of the notice provided for in this Article II, Section 9 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (y) who complies with the procedures and requirements set forth in
subparagraphs (a) and (b) of this Article II, Section 9.
(a) Condition of Submission to Stockholders. No proposal for a stockholder
vote shall be submitted by a stockholder (a "Stockholder Proposal") to the
Corporation's stockholders unless such Stockholder Proposal is a proper subject
for stockholder action under the DGCL and the stockholder submitting such
proposal (the "Proponent") is a stockholder of record on the date of the giving
of the notice provided for in this Article II, Section 9 and on the record date
for the determination of stockholders entitled to vote at such meeting and has
filed a written notice (a "Proposal Notice") setting forth with particularity
(i) the names and business addresses of the Proponent and all persons or
entities (collectively, the "Persons" and singularly, a "Person") acting in
concert with the Proponent; (ii) the name and address of the Proponent and the
Persons identified in clause (i), as they appear on the Corporation's books (if
they so appear); (iii) the class and number of shares of the Corporation
beneficially owned by the Proponent and the Persons identified in clause (i);
(iv) a description of the Stockholder Proposal containing all material
information relating thereto; and (v) such other information as the Board of
Directors reasonably determines is necessary or appropriate to enable the Board
of Directors and stockholders of the Corporation to consider the Stockholder
Proposal.
(b) Stockholder Proposal Notice. To be timely, Proposal Notices must be
delivered to the Secretary and received at the principal executive offices of
the Corporation (if delivered by electronic mail or facsimile, the Proposal
Notice shall be directed to the Secretary at the electronic mail address or
facsimile number, as the case may be specified in the Corporation's most recent
proxy statement) (1) in the case of an annual meeting, not less than 60 days nor
more than 90 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, the Proposal Notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual meeting is
mailed or such public disclosure of the date of the annual meeting is made,
whichever first occurs, or (2) in the case of a special meeting of stockholders
called for the purpose of electing directors, not later than the close of
business on the 10th day following the day on which notice of the date of the
special meeting is mailed or public disclosure of the date of the special
meeting is made, whichever first occurs. In no event shall any adjournment or
postponement of any annual or
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special meeting or the announcement thereof commence a new time period for the
giving of a Proposal Notice as described in this Section 9.
(c) Effect of Noncompliance. Only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures prescribed in these Bylaws. The presiding officer
at any stockholders' meeting may determine that any Stockholder Proposal was not
made in accordance with the procedures prescribed in these Bylaws or is
otherwise not in accordance with law, and if it is so determined, such officer
shall so declare at the meeting and the Stockholder Proposal shall be
disregarded.
(d) Public Disclosure. For purposes of these Bylaws "public disclosure"
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 9, 13, 14, or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(e) Notwithstanding the foregoing provisions of this Section, 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; provided, however, that any references in these Bylaws to the Exchange
Act or the rules promulgated thereunder are not intended to and shall not limit
the requirements applicable to nomination or proposals as to any other business
to be considered pursuant to these Bylaws. Nothing in this Section shall be
deemed to affect any rights of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 10. VOTING POWER.
Unless otherwise provided in the Amended and Restated Certificate of
Incorporation (including any resolution or resolutions providing for any class
or series of Preferred Stock pursuant to Article IV thereof) (the "Certificate
of Incorporation") or by the DGCL, each stockholder of record of the Corporation
shall be entitled to one vote for each share of Class A Common Stock held by
such stockholder. All elections shall be determined by a plurality of the votes
cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
SECTION 11. PROXIES.
Every stockholder may vote either in person or by proxy. Every proxy
shall be executed in writing by the stockholder or by his duly authorized
attorney-in-fact and filed with the Secretary of the Corporation. A proxy,
unless coupled with an interest, shall be revocable at will, notwithstanding any
other agreement or any provision in the proxy to the contrary, but the
revocation of a proxy shall not be effective until notice thereof has been given
to the Secretary of the Corporation. No proxy shall be valid after eleven months
from the date of its execution unless a longer time is expressly provided
therein, but in no event shall a proxy, unless coupled with an interest, be
voted on after three years from the date of its execution. A proxy shall not be
revoked by the death or incapacity of the maker unless before the vote is
counted or the authority is exercised, written notice of such death or
incapacity is given to the Secretary of the
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Corporation. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or by filing a subsequent
duly executed proxy with the secretary of the corporation.
SECTION 12. INSPECTORS.
Elections for directors need not be by ballot, except upon demand made by a
stockholder at the election and before the voting begins. In advance of any
meeting of stockholders, the Board of Directors shall appoint inspectors, who
need not be stockholders, to act at such meeting and make a written report
thereof. Such inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation. The number of inspectors shall be one or
three. One or more persons may be designated by the Board of Directors as
alternate inspectors to replace any inspector who fails to act. In case any
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the convening of the meeting, or at the meeting by the person or officer
acting as chairman. Each inspector, before discharging his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the DGCL.
SECTION 13. PRESIDING OFFICERS AND ORDER OF BUSINESS.
All meetings of stockholders shall be called to order and presided over by
the Chairman of the Board, or in his absence, by the Chief Executive Officer,
President or highest ranking Vice President, or in the absence of all of them,
by the Chief Financial Officer, or if none of these be present by a chairman
designated by the Board of Directors. The Secretary of the Corporation shall act
as secretary, but in the absence of the Secretary, the presiding officer may
appoint a secretary.
SECTION 14. PROCEDURAL MATTERS.
At each meeting of stockholders, the chairman of the meeting shall fix and
announce the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at the meeting and shall determine
the order of business and all other matters of procedure. Except to the extent
inconsistent with any such rules and regulations as adopted by the Board of
Directors, the chairman of the meeting may establish rules, which need not be in
writing, to maintain order for the conduct of the meeting, including, without
limitation, restricting attendance to bona fide stockholders of record and their
proxies and other persons in attendance at the invitation of the chairman and
making rules governing speeches and debates. The chairman of the meeting acts in
his or her absolute discretion and his or her rulings are not subject to appeal.
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SECTION 15. ABILITY OF STOCKHOLDERS TO ACT BY WRITTEN CONSENT.
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of stockholders at an
annual or special meeting duly noticed and called in accordance with the DGCL
and these Bylaws of the Corporation and may not be taken by written consent of
stockholders without a meeting, unless the action to be effected by written
consent of stockholders and the taking of such action by such written consent
have expressly been approved in advance by the Board of Directors of the
Corporation.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS; QUALIFICATIONS; NUMBER AND TERM.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors of the Corporation. A director need not
be a stockholder, a citizen of the United States, or a resident of the State of
Delaware. The Board of Directors shall initially consist of eight persons;
provided, however, that such number of directors may from time to time be
increased and decreased by a duly adopted resolution of the Board of Directors
but shall in no event be reduced to less than three. The Board of Directors
shall be divided into three classes, as nearly equal in number as the then total
number of directors constituting the entire Board permits, with the term of
office of one class expiring each year. The initial division of the Board of
Directors shall be made by the decision of a majority of the entire Board of
Directors. The initial Class I directors elected by the stockholders of the
Corporation shall hold office for a term expiring at the 1998 annual meeting of
stockholders and until their successors shall be elected and qualified, subject
to prior death, retirement, resignation or removal; the initial Class II
directors elected by the stockholders of the Corporation shall hold office for a
term expiring at the 1999 annual meeting of stockholders and until their
successors shall be elected and qualified, subject to prior death, retirement,
resignation or removal; and the initial Class III directors elected by the
stockholders of the Corporation shall hold office for a term expiring at the
2000 annual meeting of stockholders and until their successors shall be elected
and qualified, subject to prior death, retirement, resignation or removal. At
each such annual meeting of stockholders and at each annual meeting thereafter,
successors to the class of directors whose term expires at that meeting shall be
elected for a term expiring at the third annual meeting following their election
and until their successors shall be elected and qualified, subject to prior
death, retirement, resignation or removal.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Section 4.3 of the Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Section unless expressly provided by such
terms.
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SECTION 2. VACANCIES.
Subject to the rights of the holders of any series of preferred stock or
any other class of capital stock of the Corporation (other than common stock)
then outstanding, any vacancy in the Board of Directors, arising from death,
retirement, resignation, removal, an increase in the number of directors or any
other cause, may be filled by the Board of Directors, acting by a majority of
the remaining directors then in office, although less than a quorum, or by a
sole remaining director, the stockholders acting at an annual meeting or, if the
vacancy is with respect to a director elected by a voting group, by action of
any other directors elected by such voting group or such voting group.
Each director chosen to fill a vacancy in the Board of Directors arising
from the death, retirement, resignation, removal of a director shall be elected
to complete the term of office of the director who is being succeeded. In the
event of any increase or decrease in the authorized number of directors, (a)
each director then serving as such shall nevertheless continue as director of
the class of which he or she is a member until the expiration of such director's
current term or prior death, retirement, resignation or removal and (b) the
newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of directors so as to ensure that no one class has more than one director more
than any other class, and each director so elected shall hold office for the
same term as the other members of the class to which the director is assigned.
No decrease in the number of directors constituting the whole Board of Directors
shall shorten the term of an incumbent director.
SECTION 3. REMOVAL OF DIRECTORS.
Except as may be provided in a resolution or resolutions providing for any
class or series of Preferred Stock pursuant to Article IV of the Certificate
of Incorporation with respect to any directors elected by the holders of such
class or series, 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 at least two-thirds (66 2/3%) of the voting power of all of the
shares of capital stock of the Corporation then entitled to vote generally in
the election of directors, voting together as a single class. The provisions of
this subsection shall be the exclusive method for the removal of directors.
SECTION 4. NOMINATION OF DIRECTORS.
Only persons who are selected and recommended by the Board of Directors or
the committee of the Board of Directors designated to make nominations, or who
are nominated by stockholders in accordance with the procedures set forth in
this Article III, Section 4, shall be eligible for election, or qualified to
serve, as directors, except as may be otherwise provided in the Certificate of
Incorporation with respect to the right of holders of Preferred Stock of the
Corporation to nominate and elect a specified number of directors in certain
circumstances. Nominations of individuals for election to the Board of Directors
of the Corporation at any annual meeting or any special meeting of stockholders
at which directors are to be elected may be made by any stockholder of the
Corporation (x) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 4 and on the record date for the
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determination of stockholders entitled to vote at such meeting and (y) who
complies with the procedures and requirements set forth in subparagraphs (a) and
(b) this Article III, Section 4.
(a) Nominations by stockholders shall be made by written notice (a
"Nomination Notice"), which shall set forth the following information: (i) as to
each individual nominated, (a) the name, date of birth, business address and
residence address of such individual, (b) the business experience during the
past five years of such nominee, including his or her principal occupations and
employment during such period, the name and principal business of any
corporation or other organization in which such occupations and employment were
carried on, and such other information as to the nature of his or her
responsibilities and level of professional competence as may be sufficient to
permit assessment of his or her prior business experience, (c) whether the
nominee is or has ever been at any time a director, officer or owner of 5% or
more of any class of capital stock, partnership interests or other equity
interest of any corporation, partnership or other entity, (d) any directorships
held by such nominee in any company with a class of securities registered
pursuant to Section 12 of the Exchange Act, or subject to the requirements of
Section 15(d) of the Exchange Act or any company registered as an investment
company under the Investment Company Act of 1940, as amended, (e) whether, in
the last five years, such nominee has been convicted in a criminal proceeding or
has been subject to a judgment, order, finding or decree of any federal, state
or other governmental entity, concerning any violation of federal, state or
other law, or any proceeding in bankruptcy, which conviction, order, finding,
decree or proceeding may be material to an evaluation of the ability or
integrity of the nominee and (f) any other information relating to the 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, and the rules and
regulations promulgated thereunder; and (ii) as to the Person submitting the
Nomination Notice and any Person acting in concert with such Person, (a) the
name and business address of such Person, (b) the name and address of such
Person as they appear on the Corporation's books, (c) the class and number of
shares of the Corporation that are beneficially owned by such Person, (d) a
description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder and (e)
any other information relating to such stockholder 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 and the rules and regulations promulgated
thereunder. A written consent to being named in a proxy statement as a nominee,
and to serve as a director if elected, signed by the nominee, shall be filed
with any Nomination Notice.
(b) To be timely, Nomination Notices must be delivered to the Secretary and
received at the principal executive offices of the Corporation (1) in the case
of an annual meeting, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, the
Nomination Notice by the stockholder in order to be timely must be so received
not later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting is mailed or such public
disclosure of the date of the annual meeting is made, whichever first occurs, or
(2) in the case of a special meeting of stockholders called for the purpose of
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electing directors, not later than the close of business on the 10th day
following the day on which notice of the date of the special meeting is mailed
or public disclosure of the date of the special meeting is made, whichever first
occurs.
(c) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures and requirements
set forth in this Section of this Article III, Section 4. If the chairman of the
meeting determines that a nomination was not made in accordance with the
foregoing procedures and requirements, the chairman of the meeting shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
SECTION 5. PLACE OF MEETINGS.
The Board of Directors may hold annual, regular and special meetings, and
have an office or offices, either within or outside the State of Delaware, at
such place as the Board of Directors from time to time deems advisable.
SECTION 6. ANNUAL AND REGULAR MEETINGS.
The Board of Directors shall, without notice, hold an annual meeting
immediately after the annual meeting of the stockholders, or after the last
adjournment thereof, and shall hold other regular meetings at such time and
place as it may determine. No notice to the newly elected directors of such
annual meeting shall be necessary for such meeting to be lawful, provided a
quorum is present.
SECTION 7. SPECIAL MEETINGS.
The Board of Directors shall hold such special meetings as shall be called
by the Chairman of the Board, Chief Executive Officer, President, or Vice
President, or Secretary, or any two directors. Each such meeting shall be held
at such time and place as shall be designated in the notice of meeting.
SECTION 8. NOTICE OF MEETINGS.
Notice of the date, time and place of each meeting, except the annual
meeting, of the Board of Directors shall be mailed by regular mail to each
director, at his address appearing on the books of the Corporation or supplied
by the director to the Corporation for the purpose of notice ("designated
address"), at least six days before the meeting; or sent by overnight courier to
each director at his designated address at least two days before the meeting
(with delivery scheduled to occur no later than the day before the meeting); or
given orally by telephone or other means, or by telegraph, electronic or
facsimile transmission, or by any other means comparable to any of the
foregoing, to each director at his designated address not later than the day
before the day on which such meeting is to be held or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in
the circumstances. The notice of the meeting shall state the general purpose of
the meeting, but other routine business may be conducted at the meeting without
such matter being stated in the notice.
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SECTION 9. WAIVER OF NOTICE.
A waiver of written notice in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance of a person at any
meeting shall constitute a waiver of notice of such meeting, except where such
person attends a meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called or convened, and any
such person so states his purpose in attending such meeting and refrains from
participation in the business of the meeting.
SECTION 10. QUORUM.
Except as otherwise provided in the Certificate of Incorporation, these
Bylaws and the DGCL, a majority of the directors in office shall be necessary at
any meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting, and the affirmative vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board. In the absence
of a quorum for any such meeting, a majority of the directors present thereat
may adjourn such meeting from time to time until a quorum shall be present
thereat. Notice of any adjourned meeting need not be given.
SECTION 11. PRESIDING OFFICER AND ORDER OF BUSINESS.
All meetings of the Board of Directors shall be called to order and
presided over by the Chairman of the Board, or in his absence, by a member of
the Board of Directors selected by the members present. The Secretary of the
Corporation shall act as secretary, but in the absence of the Secretary, the
presiding officer may appoint a secretary.
SECTION 12. ACTION BY BOARD WITHOUT FORMAL MEETING.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, 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 or by electronic transmission, and the writing or
writings or electronic transmissions are filed with the minutes of proceedings
of the Board of Directors or committee, as the case may be.
SECTION 13. COMPENSATION.
Directors, as such, shall receive such compensation and reimbursement for
expenses as the Board of Directors may by resolution allow. Directors shall also
be entitled to receive such compensation for services rendered to the
Corporation in any capacity other than as directors, as may be provided from
time to time by resolution of the Board of Directors.
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SECTION 14. RESIGNATION.
Any director, member of a committee, or other officer may resign at any
time by giving written notice to the Board of Directors, the Chairman of the
Board or Secretary of the Corporation. Such resignation shall be effective at
the time specified therein, or, if no time be specified, at the time of its
receipt by the Board of Directors or such officer, and the acceptance of the
resignation shall not be necessary to make it effective. Resignations not
submitted in writing may be evidenced by a written acknowledgement of receipt
thereof signed by the receiving director or officer of the Corporation or by
acknowledgement of receipt thereof in the minutes of a subsequent stockholders'
or directors' meeting.
SECTION 15. TELEPHONIC MEETINGS AND PARTICIPATION.
Members of the Board of Directors or any committee designated thereby may
participate in any meeting of such Board of Directors or committee by means of
conference telephone or similar communications equipment by which all persons
participating can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
SECTION 16. CHAIRMAN OF THE BOARD
The Chairman of the Board, if one is elected, shall, if present, preside at
meetings of the stockholders and the Board of Directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
Board of Directors or as may be prescribed by these Bylaws. The Chairman of the
Board shall report to the Board of Directors.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES GENERALLY.
The Board of Directors may, by resolutions passed by a majority of the
members of the Board of Directors then in office, designate members of the Board
of Directors to constitute committees that, except as otherwise provided in
Sections 2 and 3 of this Article IV, in each case, shall consist of such number
of directors, and shall have and may execute such powers, as is permitted by law
and specified in the respective resolutions appointing them. Any such committee
may fix its rules of procedure, determine its manner of acting and the time and
place, whether within or without the State of Delaware, of its meetings and
specify what notice thereof, if any, shall be given, unless these Bylaws, or the
Board of Directors by resolution, shall provide otherwise. Unless otherwise
provided by the Board of Directors or such committee, the quorum, voting and
other procedures shall be the same as those applicable to actions taken by the
Board of Directors. A majority of the members of the Board of Directors then in
office shall have the power to change the membership of any such committee at
any time, to fill vacancies therein and to discharge any such committee or to
remove any member thereof, either with or without cause, at any time.
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SECTION 2. AUDIT COMMITTEE.
The Audit Committee shall consist of such number of directors, who shall
not be officers or employees of the Corporation or any of its affiliates, not
less than two, as shall from time to time be determined by the Board of
Directors. The Audit Committee shall each year make a recommendation, based on a
review of qualifications, to the Board of Directors for the appointment of
independent public accountants to audit the financial statements of the
Corporation and to perform such other duties as the Board of Directors may from
time to time prescribe. As part of such review of qualifications, the Audit
Committee shall consider management's plans for engaging the independent public
accountants for management advisory services to determine whether such services
could impair the public accountants' independence. The Audit Committee shall
examine and make recommendations to the Board of Directors with respect to the
scope of audits conducted by the Corporation's independent public accountants
and internal auditors. The Audit Committee shall review all recommendations made
by the Corporation's independent public accountants and internal auditors to the
Audit Committee or the Board of Directors with respect to the accounting methods
and the system of internal control used by the Corporation, and shall advise the
Board of Directors with respect thereto. The Audit Committee shall review
reports from the Corporation's independent public accountants and internal
auditors concerning compliance by management with governmental laws and
regulations and with the Corporation's policies relating to ethics, conflicts of
interest and disbursements of funds. The Audit Committee shall meet with the
Corporation's independent public accountants and/or internal auditors without
management present whenever the Audit Committee shall deem it appropriate.
SECTION 3. COMPENSATION COMMITTEE.
The Compensation Committee shall consist of such number of directors, not
less than two, as shall from time to time be determined by the Board of
Directors. As authorized by the Board of Directors, the Compensation Committee
shall make recommendations to the Board of Directors with respect to the
administration of the salaries, bonuses, and other compensation to be paid to
key employees and officers of the Corporation, including the terms and
conditions of their employment, and shall administer all stock option and other
benefit plans affecting key employees' and officers' direct and indirect
remuneration.
ARTICLE V
OFFICERS AND AGENTS
SECTION 1. OFFICERS.
The officers of the Corporation shall be a Chief Executive Officer, a
President, a Chief Financial Officer and a Secretary, all of whom shall be
elected by the Board of Directors. In addition, the Board of Directors may elect
one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers, or
appoint such other additional officers and agents as they may deem advisable.
Any two or more offices may be held by the same person except the offices of
President and Secretary. The officers shall be elected each year at the annual
meeting of the Board of Directors which shall be held each year pursuant to
Article III, Section 6 hereof.
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The Board of Directors may appoint, or may empower the Chief Executive
Officer to appoint, such other officers as the business of the Corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these Bylaws or as the Board of
Directors may from time to time determine.
SECTION 2. TERM.
Each officer and each agent shall hold office until his successor is
elected or appointed and qualified or until his death, resignation or removal by
the Board of Directors.
SECTION 3. AUTHORITY, DUTIES AND COMPENSATION.
All elected or appointed officers and agents shall have such authority and
perform such duties as may be provided in the Bylaws or as may be determined by
the Board of Directors. They shall receive such compensation for their services
as may be determined by the Board of Directors. Notwithstanding any other
provisions of these Bylaws, the Board of Directors shall have power from time to
time by resolution to prescribe by what officers or agents particular documents
or instruments or particular classes of documents or instruments shall be
signed, countersigned, endorsed or executed, provided, however, that any person,
firm or corporation shall be entitled to accept and to act upon any document or
instrument signed, countersigned, endorsed or executed by officers or agents of
the company pursuant to the provisions of these Bylaws unless prior to receipt
of such document or instrument such person, firm or corporation has been
furnished with a certified copy of a resolution of the Board of Directors
prescribing a different signature, countersignature, endorsement or execution.
SECTION 4. CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer of the Corporation shall, subject to the
control of the Board of Directors, have general supervision, direction, and
control of the business and the officers of the Corporation. He shall preside at
all meetings of the stockholders and, in the absence or nonexistence of a
Chairman of the Board, at all meetings of the Board of Directors. He shall have
the general powers and duties of management usually vested in the chief
executive officer of a corporation, and shall have such other powers and duties
as may be prescribed by the Board of Directors or these Bylaws.
SECTION 5. PRESIDENT.
The president may assume and perform the duties of the Chief Executive
Officer in the absence or disability of the Chief Executive Officer or whenever
the office of the Chief Executive Officer is vacant. The president of the
Corporation shall exercise and perform such powers and duties as may from time
to time be assigned to him by the Board of Directors or as may be prescribed by
these Bylaws. The president shall have authority to execute in the name of the
corporation bonds, contracts, deeds, leases and other written instruments to be
executed by the Corporation. In the absence or nonexistence of the Chairman of
the Board and Chief Executive Officer, he shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a Chairman of the Board and
the Chief Executive Officer, at all meetings of the Board of Directors and shall
perform such other duties as the Board of Directors may from time to time
determine.
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SECTION 6. CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director. The chief financial officer shall deposit
all money and other valuables in the name and to the credit of the Corporation
with such depositaries as may be designated by the Board of Directors. He or she
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the Chief Executive Officer and directors, whenever
they request it, an account of all of his or her transactions as chief financial
officer and of the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or these Bylaws.
SECTION 7. VICE PRESIDENTS.
In the absence or disability of the president, the vice presidents, if any,
in order of their rank as fixed by the Board of Directors or, if not ranked, a
vice president designated by the Board of Directors, shall perform all the
duties of the president and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the president. The vice presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors, these Bylaws, the
Chairman of the Board or the Chief Executive Officer.
SECTION 8. SECRETARY.
The Secretary shall give or cause to be given all required notices of
meetings of stockholders and of the Board of Directors, shall attend such
meetings when practicable, shall record and keep the minutes and all other
proceedings thereof, shall attest such records after every meeting by his
signature, shall safely keep all documents and papers which shall come into his
possession and shall truly keep the books and accounts of the Corporation
appertaining to his office. In the absence or disability of the Secretary, any
Assistant Secretary shall have authority and perform the duties of the
Secretary.
SECTION 9. RESIGNATION AND REMOVAL OF OFFICERS.
Any executive officer of the Corporation may be removed, either for cause
or without cause, by the affirmative vote of a majority of the full Board of
Directors. Other officers and agents may be removed either for cause or without
cause by the Board of Directors or the Chief Executive Officer. Removal of an
executive officer or other officer or agent in accordance herewith shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer may resign at any time by written notice to the Corporation. Unless
otherwise stated in such notice of resignation, the acceptance thereof shall not
be necessary to make it effective; and such resignation shall take effect at the
time specified therein or, in the absence of such specification, it shall take
effect upon the receipt thereof.
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SECTION 10. VACANCIES.
Vacancy in any office or position by reason of death, resignation, removal,
disqualification or any other cause shall be filled in the manner provided in
Article V, Section 1 hereof for regular appointment to such office. Unless
earlier removed pursuant to Article V, Section 10, any officer appointed by the
Board to fill any such vacancy shall serve only until such time as the unexpired
term of his predecessor expires unless reappointed by the Board.
ARTICLE VI
INDEMNIFICATION
The Corporation shall indemnify, in accordance with Article V of its
Certificate of Incorporation, its directors, officers, delegates (as defined in
such Article V), agents and employees.
ARTICLE VII
SHARES OF CAPITAL STOCK
SECTION 1. STOCK.
The shares of the Corporation shall be represented by certificates or shall
be uncertificated. Each registered holder of shares, upon request to the
Corporation, shall be provided with a certificate of stock representing the
number of shares owned by such holder. The certificates of stock of the
Corporation shall be in the form or forms from time to time approved by the
Board of Directors. Such certificates shall be numbered and registered, shall
exhibit the holder's name and the number of shares, and shall be signed in the
name of the Corporation by the following officers of the Corporation: the
President or a Vice President; and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary. Any or all of the signatures 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 or she
were such officer, transfer agent or registrar at the date of issue.
SECTION 2. LOST CERTIFICATES.
The Board of Directors or any officer of the Corporation to whom the Board
of Directors has delegated authority may authorize any transfer agent of the
Corporation to issue, and any registrar of the Corporation to register, at any
time and from time to time unless otherwise directed, a new certificate or
certificates of stock in the place of a certificate or certificates theretofore
issued by the Corporation, alleged to have been lost or destroyed, upon receipt
by the transfer agent of evidence of such loss or destruction, which may be the
affidavit of the applicant; a bond indemnifying the Corporation and any transfer
agent and registrar of the class of stock involved against claims that may be
made against it or them on account of the lost or destroyed certificate or the
issuance of a new certificate, of such kind and in such amount as the Board of
Directors shall have authorized the transfer agent to accept generally or as the
Board of Directors or an authorized officer shall approve in particular cases;
and any other documents or instruments that the Board of Directors or an
authorized officer may require from time to time to
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protect adequately the interest of the Corporation. A new certificate may be
issued without requiring any bond when, in the judgment of the directors, it is
proper to do so.
SECTION 3. TRANSFERS OF STOCK.
Transfers of stock shall be made upon the books of the Corporation: (1)
upon presentation of the certificates by the registered holder in person or by
duly authorized attorney, or upon presentation of proper evidence of succession,
assignment or authority to transfer the stock, and upon surrender of the
appropriate certificate(s), or (2) in the case of uncertificated shares, upon
receipt of proper transfer instructions from the registered owner of such
uncertificated shares, or from a duly authorized attorney or from an individual
presenting proper evidence of succession, assignment or authority to transfer
the stock.
SECTION 4. HOLDER OF RECORD.
The Corporation shall be entitled to treat the holder of record of any
share or shares 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 such share
on the part of any other person whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. CORPORATE SEAL.
The Board of Directors shall prescribe the form of a suitable corporate
seal, which shall contain the full name of the Corporation and the year and
state of incorporation. Such seal may be used by causing it or a facsimile or
reproduction thereof to be affixed to or placed upon the document to be sealed.
SECTION 2. FISCAL YEAR.
The fiscal year of the Corporation shall end on the last Friday in
September in each year or shall begin and end on such other days as shall be
fixed by resolution of the Board of Directors.
SECTION 3. CORPORATE RECORDS.
The Corporation may maintain its corporate books and records at such place
or places within or without the State of Delaware as the Board of Directors may
deem necessary, desirable or expedient from time to time.
SECTION 4. CHECKS, DRAFTS AND NOTES.
All checks, drafts and other orders for the payment of money, notes and
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers,
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agent or agents of the Corporation and in such manner as shall be determined,
from time to time, by resolution of the Board.
SECTION 5. EXECUTION OF PROXIES.
The Chairman of the Board or Chief Executive Officer or, in the absence or
disability of both of them, any Vice President, may authorize, from time to
time, the execution and issuance of proxies to vote shares of stock or other
securities of other corporations held of record by the Corporation and the
execution of consents to action taken or to be taken by any such corporation.
All such proxies and consents, unless otherwise authorized by the Board, shall
be signed in the name of the Corporation by either the Chairman of the Board,
Chief Executive Officer or any Vice President.
SECTION 6. CONSTRUCTION.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law of Delaware shall
govern the construction of these Bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both an entity and a natural
person.
SECTION 7. ELECTRONIC TRANSMISSION.
When used in these Bylaws, the terms "written" and "in writing" shall
include any "electronic transmission," as defined in Section 232(c) of the DGCL,
including without limitation any voicemail, telegram, cablegram, facsimile
transmission and communication by electronic mail.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENTS.
The Board of Directors shall have power without the assent or vote of the
stockholders to make, alter, amend, change, add to or repeal the Bylaws of the
Corporation. The stockholders shall also have the power to make, alter, amend,
change, add to or repeal the Bylaws of the Corporation; provided, however, that
in addition to any vote of the holders of any class or series of capital stock
of the Corporation required by law or by the Certificate of Incorporation, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to make, alter, amend, change, add to or repeal the Bylaws of the
Corporation.
