BY-LAWS
OF
FARMER BROS. CO.
a Delaware Corporation
Adopted as of: February 17, 2004
Amended as of: March 4, 2004
TABLE OF CONTENTS
Page
ARTICLE I OFFICES
1.1 Registered Office 1
1.2 Other Offices 1
ARTICLE II MEETINGS OF STOCKHOLDERS 1
2.1 Place of Meetings 1
2.2 Annual Meetings 1
2.3 Nature of Business at Meetings of Stockholders 1
2.4 Nomination of Directors 2
2.5 Special Meetings 4
2.6 Notice 4
2.7 Adjournments 4
2.8 Quorum 4
2.9 Voting 4
2.1 Proxies 5
2.11 List of Stockholders Entitled to Vote 5
2.12 Record Date 6
2.13 Stock Ledger 6
2.14 Conduct of Meetings 6
2.15 Inspectors of Election 7
ARTICLE III DIRECTORS 7
3.1 Number and Election of Directors 7
3.2 Vacancies 7
3.3 Duties and Powers 8
3.4 Meetings 8
3.5 Organization 8
3.6 Resignations and Removals of Directors 8
3.7 Quorum 8
3.8 Actions of the Board by Written Consent 9
3.9 Meetings by Means of Conference Telephone 9
3.1 Committees 9
3.11 Compensation 9
3.12 Interested Directors 9
ARTICLE IV OFFICERS 10
4.1 General 10
4.2 Election 10
4.3 Voting Securities Owned by the Corporation 10
4.4 Chairman of the Board of Directors 11
4.5 President 11
4.6 Vice Presidents 11
4.7 Secretary 12
4.8 Treasurer 12
4.9 Assistant Secretaries 12
4.1 Assistant Treasurers 13
4.11 Other Officers 13
ARTICLE V STOCK 13
5.1 Form of Certificates 13
5.2 Signatures 13
5.3 Lost Certificates 13
5.4 Transfers 14
5.5 Dividend Record Date 14
5.6 Record Owners 14
5.7 Transfer and Registry Agents 14
ARTICLE VI NOTICES 15
6.1 Notices 15
6.2 Waivers of Notice 15
ARTICLE VII GENERAL PROVISIONS 15
7.1 Dividends 15
7.2 Disbursements 15
7.3 Fiscal Year 16
7.4 Corporate Seal 16
ARTICLE VIII INDEMNIFICATION 16
8.1 Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the Right of the Corporation 16
8.2 Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation 16
8.3 Authorization of Indemnification 17
8.4 Good Faith Defined 17
8.5 Indemnification by a Court 17
8.6 Expenses Payable in Advance 18
8.7 Nonexclusivity of Indemnification and Advancement of Expenses 18
8.8 Insurance 18
8.9 Certain Definitions 18
8.1 Survival of Indemnification and Advancement of Expenses 19
8.11 Limitation on Indemnification 19
8.12 Indemnification of Employees and Agents 19
ARTICLE IX AMENDMENTS 19
9.1 Amendments 19
9.2 Entire Board of Directors 20
BY-LAWS
OF
FARMER BROS. CO.
a Delaware Corporation
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall be designated from
time to time by the Board of Directors.
2.2 Annual Meetings. The Annual Meeting of Stockholders for the election of
directors shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors. Any other proper business may
be transacted at the Annual Meeting of Stockholders.
2.3 Nature of Business at Meetings of Stockholders. No business may be
transacted at an Annual Meeting of Stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly brought before the
Annual Meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof), or (c) otherwise properly brought before the
Annual Meeting by any stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this
Section 2.3 and on the record date for the determination of stockholders
entitled to notice of and to vote at such Annual Meeting and (ii) who
complies with the notice procedures set forth in this Section 2.3.
In addition to any other applicable requirements, for business to be properly
brought before an Annual Meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred twenty (120) 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 thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the Annual Meeting was
mailed or such public disclosure of the date of the Annual Meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the
Annual Meeting (i) a brief description of the business desired to be brought
before the Annual Meeting and the reasons for conducting such business at the
Annual Meeting, (ii) the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any material interest
of such stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the Annual Meeting to
bring such business before the meeting.
No business shall be conducted at the Annual Meeting of Stockholders except
business brought before the Annual Meeting in accordance with the procedures
set forth in this Section 2.3; provided, however, that, once business has
been properly brought before the Annual Meeting in accordance with such
procedures, nothing in this Section 2.3 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an
Annual Meeting determines that business was not properly brought before the
Annual Meeting in accordance with the foregoing procedures, the chairman
shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
2.4 Nomination of Directors. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors of
the Corporation, 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 persons for election to the Board of Directors
may be made at any Annual Meeting of Stockholders, or at any Special Meeting
of Stockholders called for the purpose of electing directors, (a) by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 2.4 and on the record date for the determination of stockholders
entitled to notice of and to vote at such meeting and (ii) who complies with
the notice procedures set forth in this Section 2.4.
In addition to any other applicable requirements, for a nomination to be made
by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Corporation (a)
in the case of an Annual Meeting, not less than ninety (90) days nor more
than one hundred twenty (120) 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
thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which such
notice of the date of the Annual Meeting was mailed or such public disclosure
of the date of the Annual Meeting was made, whichever first occurs; and (b)
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 tenth (10th)
day following the day on which notice of the date of the Special Meeting was
mailed or public disclosure of the date of the Special Meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and
(iv) 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice (i) the name and record address
of such stockholder, (ii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by such
stockholder, (iii) 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, (iv) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the persons named
in its notice and (v) 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. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
2.4. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
2.5 Special Meetings. Unless otherwise required by law or by the certificate
of incorporation of the Corporation, as amended and restated from time to
time (the "Certificate of Incorporation"), Special Meetings of Stockholders,
for any purpose or purposes, may be called by either (i) the Chairman, if
there be one, (ii) the President or (iii) the Board of Directors. At a
Special Meeting of Stockholders, only such business shall be conducted as
shall be specified in the notice of meeting (or any supplement thereto).
2.6 Notice. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which
shall state the place, date and hour of the meeting, and, in the case of a
Special Meeting, the purpose or purposes for which the meeting is called.
Unless otherwise required by law, written notice of any meeting shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to notice of and to vote at such
meeting.
2.7 Adjournments. Any meeting of the stockholders may be adjourned from time
to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. 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, notice of the adjourned meeting in accordance with the
requirements of Section 2.6 hereof shall be given to each stockholder of
record entitled to notice of and to vote at the meeting.
2.8 Quorum. Unless otherwise required by applicable law or the Certificate
of Incorporation, the holders of a majority of the Corporation's capital
stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a
quorum. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, in the manner provided in Section 2.7 hereof,
until a quorum shall be present or represented.
2.9 Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
the stockholders, other than the election of directors, shall be decided by
the vote of the holders of a majority of the total number of votes of the
Corporation's capital stock represented and entitled to vote thereat, voting
as a single class. Unless otherwise provided in the Certificate of
Incorporation, and subject to Section 2.12 of this Article II, each
stockholder represented at a meeting of the stockholders shall be entitled to
cast one (1) vote for each share of the capital stock entitled to vote
thereat held by such stockholder. Such votes may be cast in person or by
proxy as provided in Section 2.10 of this Article II. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of the stockholders, in such officer's discretion, may require that
any votes cast at such meeting shall be cast by written ballot.
2.10 Proxies. Each stockholder entitled to vote at a meeting of the
stockholders may authorize another person or persons to act for such
stockholder as proxy, but no such proxy shall be voted upon after three years
from its date, unless such proxy provides for a longer period. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, the following shall constitute
a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons
to act for such stockholder as proxy. Execution may be accomplished by the
stockholder or such stockholder's authorized officer, director, employee or
agent signing such writing or causing such person's signature to be affixed
to such writing by any reasonable means, including, but not limited to, by
facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of a
telegram or cablegram to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy to receive
such telegram or cablegram, provided that any such telegram or cablegram must
either set forth or be submitted with information from which it can be
determined that the telegram or cablegram was authorized by the stockholder.
If it is determined that such telegrams or cablegrams are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing, telegram or cablegram authorizing another person or persons to act
as proxy for a stockholder may be substituted or used in lieu of the original
writing, telegram or cablegram for any and all purposes for which the
original writing, telegram or cablegram could be used; provided, however,
that such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing, telegram or cablegram.
2.11 List of Stockholders Entitled to Vote. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make,
at least ten (10) days before every meeting of the stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting (i) 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 or (ii) during ordinary business hours, at the principal place of
business of the Corporation. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
2.12 Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the
stockholders or any adjournment thereof, the Board of Directors may fix a
record date, 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 sixty (60) nor less than ten (10)
days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of the stockholders shall be at the close
of business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of the stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
2.13 Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by Section 10 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
2.14 Conduct of Meetings. The Board of Directors of the Corporation may
adopt by resolution such rules and regulations for the conduct of any meeting
of the stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of such chairman, are appropriate for
the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of
the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) the
determination of when the polls shall open and close for any given matter to
be voted on at the meeting; (iii) rules and procedures for maintaining order
at the meeting and the safety of those present; (iv) limitations on
attendance at or participation in the meeting to stockholders of record of
the Corporation, their duly authorized and constituted proxies or such other
persons as the chairman of the meeting shall determine; (v) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and
(vi) limitations on the time allotted to questions or comments by
participants.
2.15 Inspectors of Election. In advance of any meeting of the stockholders,
the Board of Directors, by resolution, the Chairman or the President shall
appoint one or more inspectors to act at the meeting and make a written
report thereof. One or more other persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of the stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting.
Unless otherwise required by applicable law, inspectors may be officers,
employees or agents of the Corporation. Each inspector, before entering upon
the discharge of the duties of inspector, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability. The inspector shall have
the duties prescribed by law and shall take charge of the polls and, when the
vote is completed, shall make a certificate of the result of the vote taken
and of such other facts as may be required by applicable law.
ARTICLE III
DIRECTORS
3.1 Number and Election of Directors. The number of directors shall be
determined by the Certificate of Incorporation. The directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The initial
division of the Board of Directors into classes shall be made by the decision
of the affirmative vote of a majority of the entire Board of Directors. The
term of the initial Class I directors shall terminate on the date of the 2004
Annual Meeting; the term of the initial Class II directors shall terminate on
the date of the 2005 Annual Meeting; and the term of the initial Class III
directors shall terminate on the date of the 2006 Annual Meeting or, in each
case, upon such director's earlier death, resignation or removal. At each
succeeding Annual Meeting of Stockholders beginning in 2004, successors to
the class of directors whose term expires at that Annual Meeting shall be
elected for a three-year term and until their successors are duly elected and
qualified. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase in
such class or from the removal from office, death, disability, resignation or
disqualification of a director or other cause shall hold office for a term
that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors have the effect of removing or
shortening the term of any incumbent director.
3.2 Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board
of Directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of
the Board of Directors then in office, even if less than a quorum, or by a
sole remaining director. Any director of any class elected to fill a vacancy
resulting from an increase in the number of directors of such class shall
hold office for a term that shall coincide with the remaining term of that
class. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
or her predecessor.
3.3 Duties and Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these By-Laws required to be exercised or done by the stockholders.
3.4 Meetings. The Board of Directors may hold meetings, both regular and
special, either within or without the State of Delaware. Regular meetings of
the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman, if
there be one, the President, or by any two directors. Notice thereof stating
the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the
meeting, by telephone or telegram on twenty-four (24) hours' notice, or on
such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
3.5 Organization. At each meeting of the Board of Directors, the Chairman of
the Board of Directors, or, in his or her absence, a director chosen by a
majority of the directors present, shall act as chairman. The Secretary of
the Corporation shall act as secretary at each meeting of the Board of
Directors. In case the Secretary shall be absent from any meeting of the
Board of Directors, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all the Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.6 Resignations and Removals of Directors. Any director of the Corporation
may resign at any time, by giving notice in writing to the Chairman of the
Board of Directors, the President or the Secretary of the Corporation. Such
resignation shall take effect at the time therein specified or, if no time is
specified, immediately; and, unless otherwise specified in such notice, the
acceptance of such resignation shall not be necessary to make it effective.
Except as otherwise required by applicable law and subject to the rights, if
any, of the holders of shares 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
at least a majority in voting power of the issued and outstanding capital
stock of the Corporation entitled to vote in the election of directors.
3.7 Quorum. Except as otherwise required by law or the Certificate of
Incorporation, at all meetings of the Board of Directors, a majority of the
entire Board of 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. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting of the time and place of the
adjourned meeting, until a quorum shall be present.
3.8 Actions of the Board by Written Consent. Unless otherwise provided in
the Certificate of Incorporation or these 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 the members of the
Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
3.9 Meetings by Means of Conference Telephone. Unless otherwise provided in
the Certificate of Incorporation or these By-Laws, members of the Board of
Directors of the Corporation, or any committee thereof, may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.9 shall constitute presence in person at
such meeting.
3.10 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. 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 any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Each committee shall keep regular minutes and report to the Board of
Directors when required.
3.11 Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated
salary for service as director, payable in cash or securities. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for service as committee members.
3.12 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 any such
director's or officer's vote is counted for such purpose if: (i) the
material facts as to the director's or officer's 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 of Directors 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 (ii) the material facts as to the
director's or officer's relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) 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 stockholders.
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 IV
OFFICERS
4.1 General. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a President, a Secretary and a Treasurer. The Board
of Directors, in its discretion, also may choose a Chairman of the Board of
Directors (who must be a director) and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices
may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation nor, except in the
case of the Chairman of the Board of Directors, need such officers be
directors of the Corporation.
4.2 Election. The Board of Directors, at its first meeting held after each
Annual Meeting of Stockholders, shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the Board
of Directors; and each officer of the Corporation shall hold office until
such officer's successor is elected and qualified, or until such officer's
earlier death, resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the Board of Directors. Any vacancy
occurring in any office of the Corporation shall be filled by the Board of
Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors or by a committee of the Board of Directors.
4.3 Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the President or any Vice President or any other
officer authorized to do so by the Board of Directors and any such officer
may, in the name of and on behalf of the Corporation, take all such action as
any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
4.4 Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. The Chairman of the Board of Directors shall
be the Chief Executive Officer of the Corporation, unless the Board of
Directors designates the President as the Chief Executive Officer, and,
except where by law the signature of the President is required, the Chairman
of the Board of Directors shall possess the same power as the President to
sign all contracts, certificates and other instruments of the Corporation
which may be authorized by the Board of Directors. During the absence or
disability of the President, the Chairman of the Board of Directors shall
exercise all the powers and discharge all the duties of the President. The
Chairman of the Board of Directors shall also perform such other duties and
may exercise such other powers as may from time to time be assigned by these
By-Laws or by the Board of Directors.
4.5 President. The President shall, subject to the control of the Board of
Directors and, the Chief Executive Officer if other than the President, have
general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
The President shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign
and execute documents when so authorized by these By-Laws, the Board of
Directors or the President. In the absence or disability of the Chairman of
the Board of Directors, or if there be none, the President shall preside at
all meetings of the stockholders and, provided the President is also a
director, the Board of Directors. The foregoing notwithstanding, the Chief
Executive Officer may appoint any officer of the Corporation to preside at
meetings of stockholders. If there be no Chairman of the Board of Directors,
or if the Board of Directors shall otherwise designate, the President shall
be the Chief Executive Officer of the Corporation. The President shall also
perform such other duties and may exercise such other powers as may from time
to time be assigned to such officer by these By-Laws or by the Board of
Directors.
4.6 Vice Presidents. At the request of the President or in the President's
absence or in the event of the President's inability or refusal to act (and
if there be no Chairman of the Board of Directors), the Vice President, or
the Vice Presidents if there are more than one (in the order designated by
the Board of Directors), shall perform 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. Each Vice President shall perform such
other duties and have such other powers as the Board of Directors from time
to time may prescribe. If there be no Chairman of the Board of Directors and
no Vice President, or if the Board of Directors otherwise deems it advisable,
the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of
the President to act, shall perform 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.
4.7 Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall
also perform like duties for committees of the Board of Directors when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors, the Chairman of the Board of Directors or the President, under
whose supervision the Secretary shall be. If the Secretary shall be unable
or shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors, and if there be
no Assistant Secretary, then either the Board of Directors or the President
may choose another officer to cause such notice to be given. The Secretary
shall have custody of the seal of the Corporation and the Secretary or any
Assistant Secretary, if there be one, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest to the affixing by
such officer's signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to
be kept or filed are properly kept or filed, as the case may be.
4.8 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an
account of all transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance
of the duties of the office of the Treasurer and for the restoration to the
Corporation, in case of the Treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property
of whatever kind in the Treasurer's possession or under the Treasurer's
control belonging to the Corporation. Unless the Board of Directors
otherwise determines, the Treasurer shall be the Chief Financial Officer of
the Corporation.
4.9 Assistant Secretaries. Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if
there be one, or the Secretary, and in the absence of the Secretary or in the
event of the Secretary's inability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the Secretary.
4.10 Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if
there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of the Treasurer's inability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of the office
of Assistant Treasurer and for the restoration to the Corporation, in case of
the Assistant Treasurer's death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in the Assistant Treasurer's possession or under the Assistant
Treasurer's control belonging to the Corporation.
4.11 Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors
may delegate to any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
5.1 Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation
(i) by the Chairman of the Board of Directors, or the President or a Vice
President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by such stockholder in the Corporation.
5.2 Signatures. Any or all of the signatures on a 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 such person were such officer, transfer agent or registrar at
the date of issue.
5.3 Lost Certificates. The Board of Directors may direct a new certificate
to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock
to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or such owner's legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give
the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of such certificate or the issuance of such new
certificate.
5.4 Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law and in these By-Laws. Transfers of stock shall
be made on the books of the Corporation only by the person named in the
certificate or by such person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for
transfer and payment of all necessary transfer taxes; provided, however, that
such surrender and endorsement or payment of taxes shall not be required in
any case in which the officers of the Corporation shall determine to waive
such requirement. Every certificate exchanged, returned or surrendered to
the Corporation shall be marked "Cancelled," with the date of cancellation,
by the Secretary or Assistant Secretary of the Corporation or the transfer
agent thereof. No transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom transferred.
5.5 Dividend Record Date. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty (60) days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
5.6 Record Owners. 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 required by
law.
5.7 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agencies and registry offices or
agencies at such place or places as may be determined from time to time by
the Board of Directors.
ARTICLE VI
NOTICES
6.1 Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at such person's address as
it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable.
6.2 Waivers of Notice. Whenever any notice is required by applicable law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. Attendance of a
person at a meeting, present in person or represented by proxy, shall
constitute a waiver of notice of such meeting, except where the person
attends the meeting for the express purpose of objecting at the beginning of
the meeting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any Annual or Special Meeting of Stockholders or any regular
or special meeting of the directors or members of a committee of directors
need be specified in any written waiver of notice unless so required by law,
the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
7.1 Dividends. Dividends upon the capital stock of the Corporation, subject
to the requirements of the General Corporation Law of the State of Delaware
(the "DGCL") and the provisions of the Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting
of the Board of Directors (or any action by written consent in lieu thereof
in accordance with Section 8 of Article III hereof), and may be paid in cash,
in property, or in shares of the Corporation's capital stock. Before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time
to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for purchasing any of the shares of capital stock,
warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may modify or abolish
any such reserve.
7.2 Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
7.3 Fiscal Year. The fiscal year of the Corporation shall end on June 30 of
each year unless changed by resolution of the Board of Directors.
7.4 Corporate Seal. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
8.1 Power to Indemnify in Actions, Suits or Proceedings other than Those by
or in the Right of the Corporation. Subject to Section 8.3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), by reason of
the fact that such person is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such person's conduct was unlawful.
8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation. Subject to Section 8.3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit if 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; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
8.3 Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the present or former director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and officers,
by any person or persons having the authority to act on the matter on behalf
of the Corporation. To the extent, however, that a present or former
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
8.4 Good Faith Defined. For purposes of any determination under Section 8.3
of this Article VIII, a person shall be deemed to have 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, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe such
person's conduct was unlawful, if such person's action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
provisions of this Section 8.4 shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 8.1 or Section
8.2 of this Article VIII, as the case may be.
8.5 Indemnification by a Court. Notwithstanding any contrary determination
in the specific case under Section 8.3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any
other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 8.1 or
Section 8.2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because such person has
met the applicable standard of conduct set forth in Section 8.1 or Section
8.2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 8.3 of this Article VIII nor
the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to this Section 8.5 shall be
given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
8.6 Expenses Payable in Advance. Expenses (including attorneys' fees)
incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article VIII. Such expenses (including attorneys' fees) incurred by
former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the Corporation deems appropriate.
8.7 Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation, these By-Laws, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in such person's official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation
that indemnification of the persons specified in Section 8.1 and Section 8.2
of this Article VIII shall be made to the fullest extent permitted by law.
The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 8.1 or Section
8.2 of this Article VIII but whom the Corporation has the power or obligation
to indemnify under the provisions of the DGCL, or otherwise.
8.8 Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VIII.
8.9 Certain Definitions. For purposes of this Article VIII, references to
"the Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the
same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued. The
term "another enterprise" as used in this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan
or other enterprise of which such person is or was serving at the request of
the Corporation as a director, officer, employee or agent. For purposes of
this Article VIII, references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to "serving at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties
on, or involves services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VIII.
8.10 Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
8.11 Limitation on Indemnification. Notwithstanding anything contained in
this Article VIII to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 8.5 of this Article
VIII), the Corporation shall not be obligated to indemnify any director or
officer (or his or her heirs, executors or personal or legal representatives)
or advance expenses in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
8.12 Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights
to indemnification and to the advancement of expenses to employees and agents
of the Corporation similar to those conferred in this Article VIII to
directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
9.1 Amendments. These By-Laws may be altered, amended or repealed, in whole
or in part, or new By-Laws may be adopted by the stockholders or by the Board
of Directors; provided, however, that notice of such alteration, amendment,
repeal or adoption of new By-Laws be contained in the notice of such meeting
of the stockholders or Board of Directors, as the case may be. All such
amendments must be approved by either the holders of at least a majority of
the outstanding capital stock entitled to vote thereon or by a majority of
the entire Board of Directors then in office.
9.2 Entire Board of Directors. As used in this Article IX and in these By-
Laws generally, the term "entire Board of Directors" means the total number
of directors which the Corporation would have if there were no vacancies.
Adopted as of: February 17, 2004
FIRST AMENDMENT TO THE BY-LAWS OF
FARMER BROS. CO.
This First Amendment to the By-Laws, dated March 4, 2004 (the "By-Laws") of
Farmer Bros. Co., a Delaware corporation (the "Corporation"), amends the By-
Laws adopted as of February 17, 2004, as follows:
Article V, Section 5.1 of the By-Laws of the Corporation is hereby amended to
read in its entirety as follows:
"5.1 Form of Certificate. Shares of the Corporation's stock may be
certificated or uncertificated, as provided under Delaware law, provided that
every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation (i) by the Chairman of the Board
of Directors, or the President or a Vice President and (ii) by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such stockholder in the
Corporation."
Article V, Section 5.4 of the By-Laws of the Corporation is amended to delete
the phrase "person named in the certificate" from the second sentence and
insert the phrase 'record holder of such stock" in place thereof.