BY-LAWS
of
GENERAL MILLS, INC.
as amended
through
October 27, 1997
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 a majority vote
of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (2) by a committee of such directors
designated by a majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or, if such directors so
direct, by independent legal counsel in a written opinion, or (4) by the
stockholders, or (5) in the case of a determination with respect to
employees or agents (who are not then directors or officers of the
corporation), by the Chief Executive Officer, the President, a Vice Chairman
or the General Counsel.
(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 corporation 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.