BY-LAWS
of
GENERAL MILLS, INC.
as amended
through
December 11, 1995
INDEX OF BY-LAWS
Page
ARTICLE I. STOCKHOLDERS 1
Section 1. Place of Holding Meeting 1
Section 2. Quorum 1
Section 3. Adjournment of Meetings 1
Section 4. Annual Election of Directors 2
Section 5. Special Meetings: How Called 2
Section 6. Voting at Stockholders' Meetings 2
Section 7. Notice of Stockholders' Meetings 3
Section 8. Notice of Stockholder Business and
Nominations 3
ARTICLE II. DIRECTORS. 5
Section 1. Organization 5
Section 2. Election of Officers 5
Section 3. Regular Meetings 6
Section 4. Special Meetings: How Called: Notice 6
Section 5. Number: Qualifications: Quorum: Term 6
Section 6. Place of Meetings 6
Section 7. Powers of Directors 7
Section 8. Vacancies. 7
Section 9. Resignation of Directors 7
Section 10. Compensation of Directors 7
Section 11. Executive Committee 7
Section 12. Executive Committee: Powers 8
Section 13. Executive Committee: Organization:
Meetings, Etc. 8
Section 14. Resignation and Removal of Member of
Executive Committee 9
Section 15. Vacancies in the Executive Committee 9
Section 16. Other Committees 9
ARTICLE III. OFFICERS 9
Section 1. Titles. 9
Section 2. Chairman 9
Section 3. Vice Chairman 10
Section 4. President 10
Section 5. Vice President(s) 10
Section 6. Secretary 10
Section 7. Assistant Secretary 11
Section 8. Senior Vice President, Corporate Finance 11
Section 9. Director of Finance 11
Section 10. Senior Vice President, Financial Operations 11
Section 11. Resignation and Removal of Officers 12
Section 12. Salaries 12
ARTICLE IV. CAPITAL STOCK 12
Section 1. Issue of Certificates of Stock 12
Section 2. Transfer of Shares 12
Section 3. Dividends 13
Section 4. Lost Certificates 13
Section 5. Rules as to Issue of Certificates 13
Section 6. Holder of Record Deemed Holder in Fact 13
Section 7. Closing of Transfer Books or Fixing
Record Date 13
ARTICLE V. CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC. 14
Section 1. Contracts, Etc.: How Executed 14
Section 2. Loans 14
Section 3. Deposits 14
Section 4. Checks, Drafts, Etc. 14
Section 5. Transaction of Business 15
ARTICLE VI. MISCELLANEOUS PROVISIONS 15
Section 1(a) Fiscal Year 15
Section 1(b) Staff and Divisional Titles 15
Section 2. Notice and Waiver of Notice 15
Section 3. Inspection of Books 15
Section 4. Construction 16
Section 5. Adjournment of Meetings 16
Section 6. Indemnification 16
Section 7. Resolution of Board of Directors
Providing for Issuance of Cumulative
Preference Stock 18
ARTICLE VII. AMENDMENTS 18
Section 1. Amendment of By-Laws 18
BY-LAWS
of
GENERAL MILLS, INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. Place of Holding Meeting: Meetings of
stockholders may be held within or without the State of
Delaware, and, unless otherwise determined by the board of
directors or the stockholders, all meetings of the stockholders
shall be held at the principal office of the corporation in the
City of Minneapolis in the State of Minnesota.
SECTION 2. Quorum: Any number of stockholders together
holding one-half (1/2) in amount of the stock issued and
outstanding entitled to vote, who shall be present in person or
represented by proxy at any meeting duly called, shall
constitute a quorum for the transaction of business, except as
may be otherwise provided by law, by the certificate of
incorporation, or by these by-laws. At any meeting of
stockholders for the election of directors at which any class or
classes of stock or any one or more series of any class or
classes of stock shall have a separate vote as such class or
series for the election of directors by such class or series,
the absence of a quorum of any other class of stock or of any
other series of any class of stock shall not prevent the
election of the directors to be elected by such class or series.
SECTION 3. Adjournment of Meetings: If less than a quorum
shall be in attendance at the time for which the meeting shall
have been called, the meeting may be adjourned from time to time
by the chairman of the meeting or by a majority vote of the
stockholders present or represented, without any notice other
than by announcement at the meeting, until a quorum shall
attend. Any meeting at which a quorum is present may also be
adjourned, in like manner, for such time, or upon such call, as
may be determined by the chairman of the meeting or by a
majority vote of the stockholders. At any such adjourned
meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as
originally called. In the absence of a quorum of any class or
classes of stock or any one or more series of any class or
classes of stock at any meeting of stockholders at which more
than one class or series of stock shall be entitled to vote
separately as a class or series for the election of directors, a
majority in interest of the stockholders present in person or by
proxy of the class or classes or one or more series of stock
which lack a quorum shall also have the power to adjourn the
meeting for the election of directors which they are entitled to
elect, from time to time, without notice other than by
announcement at the meeting, until a quorum of such class or
classes or one or more series of stock shall be present.
SECTION 4. Annual Election of Directors: The annual
meeting of stockholders for the election of directors and the
transaction of other business shall be held on such date and at
such time as may be fixed by resolution of the board of
directors.
After the first election of directors no stock shall be
voted on at any election which shall have been transferred on
the books of the corporation within twenty (20) days next
preceding such election, except where the transfer books of the
corporation shall have been closed or a date shall have been
fixed as a record date for the determination of the stockholders
entitled to vote, as hereinafter in article IV, section 7 of
these by-laws provided.
The directors elected annually shall hold office until the
next annual election and until their successors are respectively
elected and qualified; provided, however, in the event that the
holders of any class or classes of stock or any one or more
series of any class or classes of stock have the right to elect
directors separately as a class or series and such right shall
have vested, such right may be exercised as provided in the
certificate of incorporation of the corporation.
The secretary shall prepare, or cause to be prepared, at
least ten (10) days before every election, a complete list of
stockholders entitled to vote, arranged in alphabetical order,
and such list shall be open at the place where the election is
to be held, for such ten (10) days, to the examination of any
stockholder, and shall be produced and kept at the time and
place of election during the whole time thereof, subject to the
inspection of any stockholder who may be present.
SECTION 5. Special Meetings: How Called: Special meetings
of the stockholders for any purpose or purposes may be called by
the chairman of the board of directors or by resolution of the
board of directors. Special meetings of the holders of any
class or classes of stock or any one or more series of any class
or classes of stock for the purpose of electing directors in
accordance with a special right as a class or series shall be
called as provided in the certificate of incorporation of the
corporation.
SECTION 6. Voting at Stockholders' Meetings: The board of
directors shall determine the voting power of any cumulative
preference stock in accordance with article IV of the
certificate of incorporation. At all meetings of stockholders
all questions, except as otherwise provided by law or the
certificate of incorporation, shall be determined by a majority
vote in interest of the stockholders entitled to vote present in
person or represented by proxy; provided, however, that any
qualified voter may demand a stock vote, and in that case, such
stock vote shall immediately be taken. A stock vote shall be by
ballot and each ballot shall be signed by the stockholder
voting, or by his proxy, if there be such proxy, and shall state
the number of shares voted. Shares of its own capital stock
belonging to the corporation shall not be voted upon directly or
indirectly. The vote on stock of the corporation may be given
by the stockholder entitled thereto in person or by his proxy
appointed by an instrument in writing, subscribed by such
stockholder or by his attorney thereunto authorized, and
delivered to the secretary of the meeting. No proxy shall be
voted on after three (3) years from its date, unless said proxy
provides for a longer period. In determining the number of
votes cast for or against a proposal, shares abstaining from
voting on a matter (including elections) will not be treated as
a vote for or against the proposal. A non-vote by a broker will
be treated as if the broker never voted.
SECTION 7. Notice of Stockholders' Meetings: Written
notice, stating the time and place of the meeting and, in case
of a special meeting, stating also the general nature of the
business to be considered, shall be given by the secretary by
mailing, or causing to be mailed, such notice, postage prepaid,
to each stockholder entitled to vote, at his post office address
as the same appears on the stock books of the corporation, or by
delivering such notice to him personally, at least ten (10) days
before the meeting.
SECTION 8. Notice of Stockholder Business and Nominations:
(a) Annual Meetings of Stockholders. (1)
Nominations of persons for election to the board of
directors of the corporation and the proposal of business
to be considered by the stockholders may be made at an
annual meeting of stockholders (A) pursuant to the
corporation's notice of meeting, (B) by or at the direction
of the board of directors or (C) by any stockholder of the
corporation who was a stockholder of record at the time of
giving of notice provided for in this section 8, who is
entitled to vote at the meeting and who complies with the
notice procedures set forth in this section 8.
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder
pursuant to clause (C) of paragraph (a)(1) of this section
8, the stockholder must have given timely notice thereof in
writing to the secretary of the corporation and such other
business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder's notice shall be
delivered to the secretary at the principal executive
offices of the corporation not later than the close of
business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of
the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business
on the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such
meeting is first made by the corporation. In no event
shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of
a stockholder's notice as described above. Such
stockholder's notice shall set forth (A) as to each person
whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest,
or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Rule 14a-11 thereunder
(including such person's written consent to being named in
the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before
the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of
such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (C) as to the stockholder
giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the corporation which are
owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (a)(2) of this section 8 to the
contrary, in the event that the number of directors to be
elected to the board of directors of the corporation is
increased and there is no public announcement by the
corporation naming all of the nominees for director or
specifying the size of the increased board of directors at
least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice
required by this section 8 shall also be considered timely,
but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the
secretary at the principal executive offices of the
corporation not later than the close of business on the
10th day following the day on which such public
announcement is first made by the corporation.
(b) Special Meetings of Stockholders. Only such
business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of
directors may be made at a special meeting of stockholders
at which directors are to be elected pursuant to the
corporation's notice of meeting (A) by or at the direction
of the board of directors or (B) provided that the board of
directors has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who is
a stockholder of record at the time of giving of notice
provided for in this section 8, who shall be entitled to
vote at the meeting and who complies with the notice
procedures set forth in this section 8. In the event the
corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of
directors, any such stockholder may nominate a person or
persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of
meeting, if the stockholder's notice required by paragraph
(a)(2) of this section 8 shall be delivered to the
secretary at the principal executive offices of the
corporation not earlier than the close of business on the
90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to
such special meeting or the 10th day following the day on
which public announcement is first made of the date of the
special meeting and of the nominees proposed by the board
of directors to be elected at such meeting. In no event
shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving
of a stockholder's notice as described above.
(c) General. (1) Only such persons who are
nominated in accordance with the procedures set forth in
this section 8 shall be eligible to serve as directors and
only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this section
8. Except as otherwise provided by law, the chairman of
the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this
section 8 and, if any proposed nomination or business is
not in compliance with this section 8, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this section 8, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of
this section 8, 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 8. Nothing in this section 8 shall
be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or
any successor rule regarding shareholder proposals or (ii)
of the holders of any series of cumulative preference stock
to elect directors under specified circumstances pursuant
to the terms of such preference stock.
ARTICLE II
DIRECTORS
SECTION 1. Organization: The board of directors may hold
a meeting for the purpose of organization and the transaction of
other business, if a quorum be present, immediately before or
after the annual meeting of the stockholders and immediately
before or after any special meeting at which directors are
elected. Notice of such meeting need not be given. Such
organizational meeting may be held at any other time or place,
which shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or in a
consent and waiver of notice thereof signed by all the
directors.
SECTION 2. Election of Officers: At such meeting the
board of directors may elect from among its number a chairman of
the board of directors, one or more persons to serve as a vice
chairman; a president and one or more corporate and company vice
presidents, a secretary, a senior vice president, corporate
finance, a senior vice president, financial operations, one or
more assistant secretaries, and one or more directors of finance
who need not be members of the Board of Directors. Such
officers shall hold office until the next annual election of
officers and until their successors are respectively elected and
qualified, unless removed by the board of directors as provided
in section 11 of article III.
SECTION 3. Regular Meetings: Regular meetings of the
board of directors shall be held on such dates as are
designated, from time to time, by resolutions of the board, and
shall be held at the principal office of the corporation, or at
such other location as the board selects. Each regular meeting
shall commence at the time designated by the Chairman of the
Board on at least five (5) days' written notice to each director
when sent by mail and on at least three (3) days' notice when
sent by private express carrier or transmitted by telex,
facsimile or similar means.
SECTION 4. Special Meetings: How Called: Notice:
Special meetings of the board of directors may be called by the
chairman of the board, a vice chairman of the board, the
president or by any three (3) directors who are not salaried
officers or salaried employees of the corporation. Written
notice of the time, place and purposes of each special meeting
shall be sent by private express carrier or transmitted by
telex, facsimile or similar means to each director at least
twenty-four (24) hours prior to such meeting. Notwithstanding
the preceding, any meeting of the board of directors shall be a
legal meeting without any notice thereof if all the members of
the board shall be present, or if all absent members waive
notice thereof.
SECTION 5. Number: Qualifications: Quorum: Term:
(a) The Board of Directors shall determine the number of
directors on the board, which shall be at least twelve (12).
(b) No person shall be eligible to become or to remain a
director of the corporation unless the person is a
stockholder in the corporation. Not more than six (6) of
the members of the board of directors shall be officers or
employees of the corporation, but the chairman of the board
shall not be deemed such an officer or employee.
(c) Subject to the provisions of the certificate of
incorporation, as amended, one-third (1/3) of the total
number of the directors (but in no event less than two (2))
shall constitute a quorum for the transaction of business.
The affirmative vote of the majority of the directors
present at a meeting at which a quorum is constituted shall
be the act of the board of directors, unless the certificate
of incorporation shall require a vote of a greater number.
(d) Except as otherwise provided in these by-laws,
directors shall hold office until the next succeeding annual
stockholders' meeting and thereafter until their successors
are respectively elected and qualified.
SECTION 6. Place of Meetings: The board of directors may
hold its meetings and keep the books of the corporation outside
of the State of Delaware, at any office or offices of the
corporation, or at any other place, as it may from time to time
by resolution determine.
SECTION 7. Powers of Directors: The board of directors
shall have the management of the business of the corporation,
and, subject to the restrictions imposed by law, by the
certificate of incorporation or by these by-laws, may exercise
all the powers of the corporation.
SECTION 8. Vacancies: Except as otherwise provided in the
certificate of incorporation, any vacancy in the board of
directors because of death, resignation, disqualification,
increase in number of directors, or any other cause may be
filled by a majority of the remaining directors, though less
than a quorum, at any regular or special meeting of the
directors; or any such vacancy resulting from any cause
whatsoever may be filled by the stockholders at the first annual
meeting held after such vacancy shall occur or at a special
meeting thereof called for the purpose.
SECTION 9. Resignation of Directors: Any director of the
corporation may resign at any time by giving written notice to
the chairman of the board or to the secretary of the
corporation. Such resignation shall take effect at the time
specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 10. Compensation of Directors: The board of
directors shall have the authority to fix the compensation of
directors. In addition, each director shall be entitled to be
reimbursed by the corporation for expenses incurred in attending
meetings of the board of directors or of any committee of which
he or she is a member. Nothing herein contained shall be
construed to preclude any director from serving the corporation
in any other capacity and receiving compensation for such
services from the corporation; provided, however, that any
person who is receiving a stated compensation as an officer of
the corporation for services as such officer shall not receive
any additional compensation for services as a director during
such period. A director entitled to receive stated compensation
for services as director, who shall serve for only a portion of
a year, shall be entitled to receive only that portion of the
annual stated compensation on which the period of service during
the year bears to the entire year. The annual compensation of
directors shall be paid at such times and in such installments
as the board of directors may determine.
SECTION 11. Executive Committee:
(a) The board of directors may appoint from its number an
executive committee of not less than eight (8) members.
(b) Not more than four (4) members shall be officers or
employees of the corporation but the chairman of the board
shall not be deemed such an officer or employee.
(c) A majority shall constitute a quorum, and in every
case the affirmative vote of a majority of all the members
of the committee shall be necessary for the adoption of any
motion, provided that in order to procure and maintain a
quorum at any meeting of the executive committee in the
absence or disqualification of any member of such committee,
the member or members thereof present at such meeting and
not disqualified from voting, whether or not they constitute
a quorum, may unanimously appoint another member of the
board of directors (subject always to the limitations of
subsection (b) above) to act at the meeting in the place of
any such absent or disqualified member.
(d) Each member of the executive committee, if appointed,
shall hold office until the election at the next succeeding
annual meeting of the stockholders of the corporation of a
new board of directors; subject to the provisions of section
14 of this article.
SECTION 12. Executive Committee: Powers: During the
intervals between the meetings of the board of directors, the
executive committee shall have and may exercise all the powers
of the board of directors in the management of the business and
affairs of the corporation, including power to authorize the
execution of any papers and to authorize the seal of the
corporation to be affixed to all papers which may require it, in
such manner as such committee shall deem best for the interests
of the corporation, in all cases in which specific directions
shall not have been given by the board of directors.
SECTION 13. Executive Committee: Organization: Meetings,
Etc.: The chairman of the executive committee shall preside at
all meetings of the executive committee and the secretary of the
corporation shall act as secretary of the executive committee.
In the absence of the chairman of the executive committee the
committee shall appoint another member thereof to act as
chairman of the meeting, and in the absence of the secretary, an
assistant secretary of the corporation shall act as secretary of
the meeting. In the absence of all of such persons, the
committee shall appoint a chairman or a secretary of the
meeting, as the case may be. If an executive committee shall be
appointed it shall hold regular meetings on such dates and at
such times and places as the chairman or a majority of the
members of the executive committee shall determine, unless the
board of directors shall otherwise provide. A special meeting
of the executive committee may be called by the chairman of the
board, the chairman of the executive committee or the secretary
of the corporation upon such notice as may be given for special
meetings of the board of directors. Any meeting of the
executive committee shall be a legal meeting without notice
thereof if all the members of the committee shall be present or
if all absent members waive notice thereof. The committee shall
keep a record of its acts and proceedings and report thereon to
the board of directors at the regular meeting thereof held next
after they shall have been taken.
SECTION 14. Resignation and Removal of Member of Executive
Committee: Any member of the executive committee may resign at
any time or may be removed at any time either with or without
cause by resolution adopted by a majority of the whole board of
directors at any meeting of the board of directors at which a
quorum is present.
SECTION 15. Vacancies in the Executive Committee: Any
vacancy in the executive committee shall be filled in the manner
prescribed by these by-laws for the original appointment of such
committee.
SECTION 16. Other Committees: The board of directors may by
resolution designate one or more other committees, in addition
to the executive committee, each of which shall consist of two
or more directors of the corporation. The board of directors
may designate one or more directors as alternate members of any
such other committee, who may replace any absent or disqualified
member at any meeting of such committee. Any such other
committee may, to the extent permitted by law, exercise such
powers and shall have such responsibilities as shall be
specified in the designating resolution. In the absence or
disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the board of directors
to act at the meeting in the place of any such absent or
disqualified member. Each such committee shall keep written
minutes of its proceedings and shall report such proceedings to
the board of directors when required. The chairman or a
majority of the members of any such other committee may fix the
time and place of its meetings, unless the board of directors
shall otherwise provide. Notice of such meetings shall be given
to each member of the committee in the manner provided for in
sections 3 and 4 of this article II with respect to meetings of
the board of directors. The board of directors shall have power
at any time to fill vacancies in, to change the membership of,
or to dissolve any such committee. Nothing herein shall be
deemed to prevent the board of directors from appointing one or
more committees consisting in whole or in part of persons who
are not directors of the corporation; provided, however, that no
such committee shall have or may exercise any authority limited
by law to the board of directors or a committee thereof.
ARTICLE III
OFFICERS
SECTION 1. Titles: The corporate and company officers to be
elected by the board of directors shall be a chairman of the
board of directors and one or more persons to serve as a vice
chairman, and a president, who shall be directors, and one or
more corporate or company vice presidents, a secretary, a senior
vice president, corporate finance, a senior vice president,
financial operations, one or more assistant secretaries, and one
or more directors of finance who need not be directors. The
board shall designate one of the corporate officers to serve as
chief executive officer.
SECTION 2. Chairman: The chairman of the board of directors
shall preside at all meetings of the board, all meetings of the
stockholders, as well as all meetings of the executive
committee. The chairman, upon being designated the chief
executive officer, shall have supervisory authority over the
policies of the corporation as well as the management and
control of the business and affairs of the corporation. He or
she shall also exercise such other powers as the board of
directors may from time to time direct or which may be required
by law.
SECTION 3. Vice Chairman: The officer or officers serving
as vice chairman shall have such duties and responsibilities
relating to the management of the corporation as may be defined
and designated by the chief executive officer or the board of
directors.
SECTION 4. President: The president shall have
responsibility for the management of the operating businesses of
the corporation and shall do and perform all acts incident to
the office of president or which are authorized by the chief
executive officer, the board of directors or as may be required
by law.
SECTION 5. Vice President(s): Each corporate vice president
shall have such designations and such powers and shall perform
such duties as may be assigned by the board of directors or the
chief executive officer. The board of directors may designate
one or more corporate vice presidents to be a senior executive
vice president, executive vice president, senior vice president,
or group vice president.
Each company vice president shall have such designations and
such powers, and shall perform such duties as may be assigned by
the board of directors, the chief executive officer or by a
corporate vice president.
SECTION 6. Secretary: The secretary shall:
(a) keep the minutes of the meetings of the stockholders,
of the board of directors and of the executive committee in
books provided for the purpose;
(b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law;
(c) be custodian of the records and have charge of the
seal of the corporation and see that it is affixed to all
stock certificates prior to their issuance and to all
documents the execution of which on behalf of the
corporation under its seal is duly authorized in accordance
with the provisions of these by-laws;
(d) have charge of the stock books of the corporation and
keep or cause to be kept the stock and transfer books in
such manner as to show at any time the amount of the stock
of the corporation issued and outstanding, the manner in
which and the time when such stock was paid for, the names,
alphabetically arranged, and the addresses of the holders of
record thereof, the number of shares held by each, and the
time when each became such holder of record; exhibit or
cause to be exhibited at all reasonable times to any
director, upon application, the original or duplicate stock
ledger;
(e) see that the books, reports, statements, certificates
and all other documents and records required by law are
properly kept, executed and filed; and
(f) in general, perform all duties incident to the office
of secretary, and such other duties as from time to time may
be assigned by the board of directors.
SECTION 7. Assistant Secretary: The board of directors may
elect an assistant secretary or more than one assistant
secretary. At the request of the secretary, or in his or her
absence or disability, an assistant secretary may perform all
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. Each assistant secretary shall have such other
powers and shall perform such other duties as may be assigned by
the board of directors.
SECTION 8. Senior Vice President, Corporate Finance: The
senior vice president, corporate finance, if required so to do
by the board of directors, shall give a bond for the faithful
discharge of his or her duties in such sum, and with such
sureties, as the board of directors shall require. The senior
vice president, corporate finance shall:
(a) have charge and custody of, and be responsible for,
all funds and securities of the corporation (until deposited
to the credit or account of the corporation with an
authorized depositary) and deposit all such funds in the
name of the corporation in such banks, banking firms, trust
companies or other depositaries as shall be selected in
accordance with the provisions of article V of these by-
laws;
(b) exhibit at all reasonable times the books of account
and records to any of the directors of the corporation upon
application during business hours at the office of the
corporation where such books and records are kept;
(c) receive, and give receipt for, moneys due and payable
to the corporation from any source whatsoever; and
(d) in general, perform all the duties incident to the
office of senior vice president, corporate finance and such
other duties as from time to time may be assigned by the
board of directors.
SECTION 9. Director of Finance: The board of directors may
elect a director of finance or more than one director of
finance. At the request of the senior vice president, corporate
finance, or in his or her absence or disability, a director of
finance may perform all the duties of the senior vice president,
corporate finance, and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the
senior vice president, corporate finance. Each director of
finance shall have such other powers and shall perform such
other duties as may be assigned by the board of directors.
SECTION 10. Senior Vice President, Financial Operations:
The senior vice president, financial operations shall perform
all of the duties incident to the office of senior vice
president, financial operations, as such duties may from time to
time be designated or approved by the board of directors.
Included in such duties shall be the establishment and
maintenance of sound accounting and auditing policies and
practices, in respect to which duties he or she shall be
responsible directly to the board of directors through its
chairman.
SECTION 11. Resignation and Removal of Officers: Any
officer of the corporation may resign at any time by giving
written notice to the chairman of the board or to the secretary.
Such resignation shall take effect at the time specified
therein, and unless otherwise specified therein the acceptance
of such resignation shall not be necessary to make it effective.
Any officer may be removed for cause at any time by a
majority of the board of directors and any officer may be
removed summarily without cause by such vote.
SECTION 12. Salaries: The salaries of officers shall be
fixed from time to time by the board of directors or the
executive committee or other committee appointed by the board.
The board of directors or the executive committee of the board
may authorize and empower the chief executive officer, the
president, any vice chairman, or any vice president of the
corporation designated by the board of directors or by the
executive committee to fix the salaries of all officers of the
corporation who are not directors of the corporation. No
officer shall be prevented from receiving a salary by reason of
the fact that he or she is also a director of the corporation.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Issue of Certificates of Stock: Certificates for
the shares of the capital stock of the corporation shall be in
such forms as shall be approved by the board of directors. Each
stockholder shall be entitled to a certificate for shares of
stock under the seal of the corporation, signed by the chairman,
the president, a vice chairman or a vice president and also by
the secretary or an assistant secretary or by the senior vice
president, corporate finance or a director of finance; provided,
however, that where a certificate is countersigned by a transfer
agent, other than the corporation or its employee, or by a
registrar, other than the corporation or its employee, the
corporate seal and any other signature on such certificate may
be a facsimile, engraved, stamped or printed. In case any
officer, transfer agent or registrar of the corporation who
shall have signed, or whose facsimile signature shall have been
used on any such certificate, shall cease to be such officer,
transfer agent or registrar, whether because of death,
resignation, or otherwise, before such certificate shall have
been delivered by the corporation, such certificate shall
nevertheless be deemed to have been adopted by the corporation
and may be issued and delivered as though the person who signed
such certificate or whose facsimile signature shall have been
used thereon had not ceased to be such officer, transfer agent
or registrar.
SECTION 2. Transfer of Shares: The shares of stock of the
corporation shall be transferable upon its books by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer the old certificates
shall be surrendered to the corporation by the delivery thereof
to the person in charge of the stock and transfer books and
ledgers, or to such other person as the board of directors may
designate, by whom they shall be cancelled, and new certificates
shall thereupon be issued for the shares so transferred to the
person entitled thereto. A record shall be made of each
transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the
entry of the transfer.
SECTION 3. Dividends: The board of directors may declare
lawful dividends as and when it deems expedient. Before
declaring any dividend, there may be reserved out of the
accumulated profits such sum or sums as the board of directors
from time to time, in its discretion, thinks proper for working
capital or as a reserve fund to meet contingencies or for
equalizing dividends, or for such other purposes as the board of
directors shall think conducive to the interests of the
corporation.
SECTION 4. Lost Certificates: Any person claiming a
certificate of stock to be lost or destroyed shall make an
affidavit or affirmation of that fact, and if requested to do so
by the board of directors of the corporation shall advertise
such fact in such manner as the board of directors may require,
and shall give to the corporation, its transfer agent and
registrar, if any, a bond of indemnity in such sum as the board
of directors may direct, but not less than double the value of
stock represented by such certificate, in form satisfactory to
the board of directors and to the transfer agent and registrar
of the corporation, if any, and with or without sureties as the
board of directors with the approval of the transfer agent and
registrar, if any, may prescribe; whereupon the chairman, the
president, a vice chairman or a vice president and the senior
vice president, corporate finance or a director of finance or
the secretary or an assistant secretary may cause to be issued a
new certificate of the same tenor and for the same number of
shares as the one alleged to have been lost or destroyed. The
issuance of such new certificates shall be under the control of
the board of directors.
SECTION 5. Rules as to Issue of Certificates: The board of
directors may make such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of
certificates of stock of the corporation. It may appoint one or
more transfer agents and/or registrars of transfers, and may
require all certificates of stock to bear the signature of
either or both. Each and every person accepting from the
corporation certificates of stock therein shall furnish the
corporation with a written statement of his or her residence or
post office address, and in the event of changing such residence
shall advise the corporation of such new address.
SECTION 6. Holder of Record Deemed Holder in Fact: The
board of directors 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 or
shares on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided
by law.
SECTION 7. Closing of Transfer Books or Fixing Record Date:
The board of directors shall have the power to close the stock
transfer books of the corporation for a period not exceeding
sixty (60) days preceding the date of any meeting of
stockholders or the date for payment of any dividend or the date
for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect;
provided, however, that in lieu of closing the stock transfer
books as aforesaid, the board of directors may fix in advance a
date, not exceeding sixty (60) days preceding the date of any
meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall
go into effect, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such
meeting, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital
stock, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to
such notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, 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.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Contracts, Etc.: How Executed: The board of
directors or such officer or person to whom such power shall be
delegated by the board of directors by resolution, except as in
these by-laws otherwise provided, may authorize any officer or
officers, agent or agents, either by name or by designation of
their respective offices, positions or class, to enter into any
contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so
authorized, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or
engagement, or to pledge its credit or to render it liable
pecuniarily for any purpose or in any amount.
SECTION 2. Loans: No loans shall be contracted on behalf of
the corporation and no negotiable paper shall be issued in its
name, unless and except as authorized by the vote of the board
of directors or by such officer or person to whom such power
shall be delegated by the board of directors by resolution.
When so authorized by the board of directors or by such officer
or person to whom such power shall be delegated by the board of
directors by resolution, any officer or agent of the corporation
may obtain loans and advances at any time for the corporation
from any bank, banking firm, trust company or other institution,
or from any firm, corporation or individual, and for such loans
and advances may make, execute and deliver promissory notes,
bonds or other evidences of indebtedness of the corporation,
and, when authorized as aforesaid to give security for the
payment of any loan, advance, indebtedness or liability of the
corporation, may pledge, hypothecate or transfer any and all
stocks, securities and other personal property at any time held
by the corporation, and to that end endorse, assign and deliver
the same, but only to the extent and in the manner authorized by
the board of directors. Such authority may be general or
confined to specific instances.
SECTION 3. Deposits: All funds of the corporation shall be
deposited from time to time to the credit of the corporation
with such banks, banking firms, trust companies or other
depositaries as the board of directors may select or as may be
selected by any officer or officers, agent or agents of the
corporation to whom such power may be delegated from time to
time by the board of directors.
SECTION 4. Checks, Drafts, Etc.: All checks, drafts or
other orders for the payment of money, notes, acceptances, or
other evidences of indebtedness issued in the name of the
corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall be
determined from time to time by resolution of the board of
directors or by such officer or person to whom such power of
determination shall be delegated by the board of directors by
resolution. Endorsements for deposit to the credit of the
corporation in any of its authorized depositaries may be made,
without any countersignature, by the chairman of the board, the
president, a vice chairman, or any vice president, or the senior
vice president, corporate finance or any director of finance, or
by any other officer or agent of the corporation appointed by
any officer of the corporation to whom the board of directors,
by resolution, shall have delegated such power of appointment,
or by hand-stamped impression in the name of the corporation.
SECTION 5. Transaction of Business: The corporation, or any
division or department into which any of the business or
operations of the corporation may have been divided, may
transact business and execute contracts under its own corporate
name, its division or department name, a trademark or a trade
name.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1.
(a) Fiscal Year: The fiscal year of the corporation
shall end with the last Sunday of May of each year.
(b) Staff and Divisional Titles: The chief executive
officer may appoint at his or her discretion such persons to
hold the title of staff vice president, divisional president
or divisional vice president or other similar designation.
Such persons shall not be officers of the corporation and
shall retain such title at the sole discretion of the chief
executive officer who may from time to time make or revoke
such designation.
SECTION 2. Notice and Waiver of Notice: Whenever any notice
is required by these by-laws to be given, personal notice to the
person is not meant unless expressly so stated; and any notice
so required shall be deemed to be sufficient if given by
depositing the same in a post office or post box in a sealed
postpaid wrapper, addressed to the person entitled thereto at
the post office address as shown on the stock books of the
corporation, in case of a stockholder, and at the last known
post office address in case of an officer or director who is not
a stockholder; and such notice shall be deemed to have been
given on the day of such deposit. In the case of notice by
private express carrier, telex, facsimile or similar means,
notice shall be deemed to be sufficient if transmitted or sent
to the person entitled to notice or to any person at the
residence or usual place of business of the person entitled to
notice who it is reasonably believed will convey such notice to
the person entitled thereto; and notice shall be deemed to have
been given at the time of receipt at such residence or place of
business. Any notice required by these by-laws may be given to
the person entitled thereto personally and attendance of a
person at a meeting shall constitute a waiver of notice of such
meeting. Whenever notice is required to be given under these by-
laws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall
be deemed equivalent to notice.
SECTION 3. Inspection of Books: The board of directors
shall determine from time to time whether and, if allowed, when
and under what conditions and regulations the accounts, records
and books of the corporation (except such as may, by statute, be
specifically open to inspection), or any of them, shall be open
to the inspection of the stockholders, and the stockholders'
rights in this respect are and shall be restricted and limited
accordingly.
SECTION 4. Construction: All references herein (i) in the
plural shall be construed to include the singular, (ii) in the
singular shall be construed to include the plural and (iii) in
the masculine gender shall be construed to include the feminine
gender, if the context so requires.
SECTION 5. Adjournment of Meetings: If less than a quorum
shall be present at any meeting of the board of directors of the
corporation, or of the executive committee of the board, or
other committee, the meeting may be adjourned from time to time
by a majority vote of members present, without any notice other
than by announcement at the meeting, until a quorum shall
attend. Any meeting at which a quorum is present may also be
adjourned in like manner, for such time or upon such call, as
may be determined by vote. At any such adjourned meeting at
which a quorum may be present, any business may be transacted
which might have been transacted at the meeting originally held
if a quorum had been present thereat.
SECTION 6. Indemnification:
(a) 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 he or she is or was a director,
officer, employee or agent of the corporation, or is or was
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 the person in connection with such action, suit
or proceeding if the person acted in good faith and in a
manner the 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 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 the 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 conduct was unlawful.
(b) 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 the person is or was a director,
officer, employee or agent of the corporation, or is or was
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 the person in connection with the
defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b), or in defense of any
claim, issue or matter therein, the person shall be
indemnified or reimbursed against expenses (including
attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any indemnification under sub-sections (a) and (b)
(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 director, officer, employee or
agent is proper in the circumstances because the person has
met the applicable standard of conduct set forth in sub-
sections (a) and (b) of this section. Such determination
shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending a 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
section. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections
of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement
of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
(g) The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or
is or was 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 any such person and
incurred by any such person in any such capacity, or arising
out of his or her status as such, whether or not the
corporation would have the power to indemnify such person
against such liability under the provisions of this section.
(h) For purposes of this section, 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,
officers, and employees or agents, so that any person who is
or was a director, officer, employee or agent of such
constituent corporation, or is or was 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 this section with respect to the resulting or
surviving corporation as the person would have with respect
to such constituent corporation if its separate existence
had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans;
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, officer,
employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted
in good faith and in a manner he or she 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 section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
SECTION 7. Resolution of Board of Directors Providing for
Issuance of Cumulative Preference Stock: For purposes of these
by-laws the certificate of incorporation shall be deemed to
include any certificate filed and recorded in accordance with
section 151(g) of the Delaware Corporation Law which, in
accordance with said section, sets forth the resolution or
resolutions adopted by the board of directors providing for the
issuance of cumulative preference stock or any series thereof.
ARTICLE VII
AMENDMENTS
SECTION 1. Amendment of By-Laws: All by-laws of the
corporation shall be subject to alteration or repeal, and new by-
laws may be made, either by the stockholders at an annual
meeting or at any special meeting, provided notice of the
proposed alteration or repeal or of the proposed new by-laws be
included in the notice of any such special meeting, or by the
affirmative vote of a majority of the whole board of directors
of the corporation at any regular meeting or at any special
meeting of the board of directors, provided that notice of the
proposed alteration or repeal or of the proposed new by-laws be
included in the notice of any such special meeting; and provided
further that no by-law shall be adopted which shall be in
conflict with the provisions of the certificate of incorporation
or any amendment thereto. By-laws made or altered by the
stockholders or by the board of directors shall be subject to
alteration or repeal either by the stockholders or by the board
of directors; provided, however, that the board of directors
shall have no power or authority to alter or repeal sub-section
(b) of section 5 or sub-section (b) of section 11 of article II
of these by-laws respecting eligibility of officers or employees
of the corporation as members of the board of directors and of
the executive committee of the board, or to make any alteration
in sub-section (a) of section 5 or in sub-section (a) of section
11 of said article II which would reduce the number composing
the board of directors below twelve (12) or the number composing
the executive committee below eight (8); the sole right to make
any such change being reserved to the stockholders. So long as
any class or classes of stock or any one or more series of any
class or classes of stock which have a separate vote as such
class or series for the election of directors by such class or
series shall be outstanding, no alteration, amendment, or repeal
of the provisions of sections 2, 3, 4, 5 and 6 of article I,
sections 1, 5, 8 and 9 of article II, section 7 of article VI,
and article VII of these by-laws which affects adversely the
rights or preferences of any such outstanding class or series of
stock shall be made without the consent or affirmative vote of
the holders of at least two-thirds (2/3) of each such class or
series entitled to vote; provided, however, that any increase or
decrease in the number of directors set forth in the first
sentence of sub-section (a) of section 5 of article II shall not
be deemed adversely to affect such rights or preferences.