Exhibit 3.1
BYLAWS OF
INTERNATIONAL MULTIFOODS CORPORATION
(A Delaware Corporation)
ARTICLE I
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the
stockholders of International Multifoods Corporation (hereinafter
called the "Corporation") for the election of directors and for the
transaction of such other business as may come before the meeting shall
be held on the third Friday in June in each year, if not a legal
holiday, and if a legal holiday, then on the next succeeding day not a
legal holiday, at such time as shall be designated by the Board of
Directors, the Chairman of the Board of Directors, or the President.
If the annual meeting shall not be held on the day hereinabove provided
for, the Board of Directors (hereinafter called the "Board") shall call
a meeting for the election of directors as soon thereafter as
convenient.
Section 2. Special Meetings. Special meetings of the
stockholders, unless otherwise prescribed by statute, may be called at
any time by the Board or by the Chairman of the Board.
Section 3. Notice of Meetings. Notice of the place, date and
time of the holding of each annual and special meeting of the
stockholders and, in the case of a special meeting, the purpose or
purposes thereof, shall be given personally or by mail in a postage
prepaid envelope to each stockholder entitled to vote at such meeting,
not less than ten nor more than sixty days before the date of such
meeting, and, if mailed, it shall be directed to such stockholder at
his address as it appears on the records of the Corporation, unless he
shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any
meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and
shall not, at the beginning of such meeting, object to the transaction
of any business because the meeting is not lawfully called or convened,
or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix
after the adjournment a new record date for an adjourned meeting,
notice of such adjourned meeting need not be given if the time and
place to which the meeting shall be adjourned were announced at the
meeting at which the adjournment is taken. At the adjourned meeting
the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
Section 4. Place of Meetings. Meetings of the stockholders may
be held at such place, within or without the State of Delaware, as the
Board or the officer calling the same shall specify in the notice of
such meeting, or in a duly executed waiver of notice thereof.
Section 5. Quorum. At all meetings of the stockholders the
holders of a majority of the votes of the shares of stock of the
Corporation issued and outstanding and entitled to vote shall be
present in person or by proxy to constitute a quorum for the
transaction of any business, except when stockholders are required to
vote by class, in which event a majority of the issued and outstanding
shares of the appropriate class shall be present in person or by proxy,
or except as otherwise provided by statute or in the Certificate of
Incorporation. In the absence of a quorum, the holders of a majority
of the votes of the shares of stock present in person or by proxy and
entitled to vote, or if no stockholder entitled to vote is present,
then any officer of the Corporation may adjourn the meeting from time
to time. 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.
Section 6. Organization. At each meeting of the stockholders,
the Chairman of the Board, or in the absence or inability to act of the
Chairman of the Board, the Chairman of the Executive Committee, or in
the absence of both the Chairman of the Board and the Chairman of the
Executive Committee, the President, or in the absence of the President,
that Vice President who is present shall preside as shall be determined
from time to time by the Board or, in absence of any such
determination, that Vice President who is present who is oldest in
seniority of service in that office, or if two or more have equal
service, who is oldest in age, shall act as chairman of the meeting.
The Secretary, or, in his absence or inability to act, an Assistant
Secretary or any person appointed by the chairman of the meeting, shall
act as secretary of the meeting and keep the minutes thereof.
Section 7. Order of Business. The order of business at all
meetings of the stockholders shall be as determined by the chairman of
the meeting.
Section 8. Voting. Except as otherwise provided by statute, the
Certificate of Incorporation, or any certificate duly filed in the
State of Delaware pursuant to Section 151 of the Delaware General
Corporation Law, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of
the stockholders to one vote for every share of such stock standing in
his name on the record of stockholders of the Corporation on the date
fixed by the Board as the record date for the determination of the
stockholders who shall be entitled to notice of and to vote at such
meeting; or if such record date shall not have been so fixed, then at
the close of business on the day next preceding the day on which notice
thereof shall be given, or if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held; and each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by
a proxy signed by such stockholder or his attorney-in-fact. Any such
proxy shall be delivered to the secretary of such meeting at or prior
to the time designated in the order of business for so delivering such
proxies. No proxy shall be valid after the expiration of three years
from the date thereof, unless otherwise provided in the proxy. Except
as otherwise provided by statute, these Bylaws, or the Certificate of
Incorporation, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes, or
when stockholders are required to vote by class by a majority of the
votes of the appropriate class, cast at a meeting of stockholders by
the holders of shares present in person or represented by proxy and
entitled to vote on such action. Unless required by statute, or
determined by the chairman of the meeting to be advisable, the vote on
any question need not be by written ballot. On a vote by written
ballot, 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.
Section 9. List of Stockholders. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 10. Inspectors. The Board may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting
or any adjournments thereof. If the inspectors shall not be so
appointed or if any of them shall fail to appear or act, the chairman
of the meeting may, and on the request of any stockholder entitled to
vote thereat shall, appoint inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. On
request of the chairman of the meeting or any stockholder entitled to
vote thereat, the inspectors shall make a report in writing of any
challenge, request or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for
the office of director shall act as inspector of an election of
directors. Inspectors need not be stockholders.
Section 11. Stockholder Action. Except as otherwise provided by
the Certificate of Incorporation, any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a
duly called annual or special meeting of the stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders.
Section 12. Business to be Conducted. (a) At any annual meeting
of the stockholders, only such business shall be conducted as shall
have been brought before the meeting (i) by or at the direction of the
Board of Directors or (ii) by any stockholder of the Corporation who is
entitled to vote with respect thereto and who complies with the
procedures set forth in this Section 12. For business to be properly
brought before an annual meeting by a stockholder, such business must
be a proper subject for stockholder action and the stockholder must
have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered or
mailed to and received at the principal executive offices of the
Corporation not less than ninety (90) days prior to the date of the
annual meeting. A stockholder's notice to the Secretary shall set
forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address of the
stockholder proposing such business, (iii) the class and number of
shares of the Corporation's capital stock that are beneficially owned
by such stockholder, (iv) any material interest of such stockholder in
such business, and (v) such other information regarding such business
as would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission if such
business had been proposed by the Board of Directors. Notwithstanding
anything in the Bylaws to the contrary, no business shall be brought
before or conducted at an annual meeting, and the chairman of the
meeting shall refuse to acknowledge the proposal of any such business,
except in accordance with the provisions of this Section 12. The
officer of the Corporation or other person presiding at the annual
meeting shall, if the facts so warrant, determine and declare to the
meeting that business was not properly brought before the meeting in
accordance with such provisions and, if he should so determine, he
shall so declare to the meeting and any such business so determined to
be not properly brought before the meeting shall not be transacted.
(b) At any special meeting of the stockholders, only such
business shall be conducted as shall have been brought before the
meeting by or at the direction of the Board of Directors.
(c) Notwithstanding this Section 12, only persons who are
nominated in accordance with the procedures set forth in Article
Thirteenth of the Certificate of Incorporation shall be eligible for
election as directors.
ARTICLE II
Board of Directors
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by the Board. The Board may exercise all
such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or the Certificate of
Incorporation directed or required to be exercised or done by the
stockholders.
Section 2. Number and Qualifications. The Board shall consist of
not less than three nor more than twelve directors. Only the
directors, by a vote of a majority of the entire Board or amendment of
these Bylaws, shall have the power from time to time to increase or
decrease the number of directors to constitute the entire Board; but no
decrease in the number of directors shall shorten the term of any
incumbent director. Any change in the number of directors which is so
made by the Board shall be effective until such number be again so
changed by the Board. Each director shall be at least twenty-one years
of age. Directors need not be stockholders of the Corporation.
Section 3. Election and Term. Except as provided in Paragraph
(6) of Article Thirteenth of the Certificate of Incorporation relating
to cumulative voting for the election of directors in certain instances
at an annual or special meeting of stockholders, the directors shall be
elected at the annual meeting of stockholders for the election of
directors at which a quorum is present, and the persons receiving a
plurality of the votes cast at such election shall be elected. The
directors, other than the directors who may be elected by the holders
of any class or series of stock of the Corporation having preference
over the Common Stock as to the election of directors under certain
specified circumstances, shall be divided into three classes as
provided in the Certificate of Incorporation: Class I to hold office
initially for a term expiring at the 1986 Annual Meeting of
Stockholders, Class II to hold office initially for a term expiring at
the 1987 Annual Meeting of Stockholders and Class III to hold office
initially for a term expiring at the 1988 Annual Meeting of
Stockholders, with such directors to hold office until their successors
are elected and qualified. At each annual meeting of stockholders, the
successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a three-year term expiring at the
annual meeting of stockholders held in the third year following the
year of their election. Except as otherwise fixed pursuant to the
provisions of the Certificate of Incorporation relating to the rights
of the holders of any class or series of stock having preference as to
the election of directors under certain circumstances, an increase or
decrease shall be apportioned among the classes so as to maintain, as
nearly as possible, an equal number of directors in each class. Any
director elected to fill a vacancy resulting from an increase in such
class shall hold office for a term that shall coincide with the
remaining term of that class. In no event will a decrease in the
number of directors shorten the term of any incumbent director.
Section 4. Place of Meetings. Meetings of the Board may be held
at such place, within or without the State of Delaware, as the Board
may from time to time determine or as shall be specified in the notice
or waiver of notice of such meeting.
Section 5. First Meeting. The Board shall meet for the purpose
of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of the
stockholders, on the same day where such annual meeting shall be held.
Notice of such meeting need not be given. Such meeting may be held at
any other time or place (within or without the State of Delaware) which
shall be specified in a notice thereof given as hereinafter provided in
Section 8 of this Article II.
Section 6. Regular Meetings. Regular meetings of the Board shall
be held at such time and place as the Board may from time to time
determine. If any day fixed for a regular meeting shall be a legal
holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at the same
hour on the next succeeding business day. Notice of regular meetings
of the Board need not be given except as otherwise required by statute
or these Bylaws.
Section 7. Special Meetings. Special meetings of the Board may
be called by two or more directors of the Corporation or by the
Chairman of the Board.
Section 8. Notice of Meetings. Notice of each special meeting of
the Board (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in
this Section 8, in which notice shall be stated the time and place
(within or without the State of Delaware) of the meeting. Notice of
each such meeting shall be delivered to each director either personally
or by telephone, telegraph, cable or wireless, at least twenty-four
hours before the time at which such meeting is to be held or by first-
class mail, postage prepaid, addressed to him at his residence, or
usual place of business, at least three days before the day on which
such meeting is to be held. Notice of any such meeting need not be
given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice
to him. Except as otherwise specifically required by these Bylaws, a
notice or waiver of notice of any regular or special meeting need not
state the purposes of such meeting.
Section 9. Quorum and Manner of Acting. At all meetings of the
Board a majority of the entire Board shall be necessary and sufficient
to constitute a quorum for the transaction of business; provided,
however, that
(i) if the Chairman of the Board, if there is then elected and
acting a Chairman of the Board, is present at any meeting of the Board;
or
(ii) if by reason of catastrophe or emergency due to enemy
action or otherwise a majority of the entire Board is not available or
capable of acting
one-third of the entire Board, but not less in any event than two
directors, shall constitute a quorum for the transaction of business at
any meeting of the Board.
The act of a majority of the directors present at any meeting at
which there is a quorum, as herein provided, shall be the act of the
Board, except as may be otherwise specifically provided by law or by
the Certificate of Incorporation or by these Bylaws.
In the absence of a quorum at any meeting of the Board, a majority
of the directors present thereat, or if no director be present, the
Secretary, may adjourn such meeting to another time and place, or such
meeting, unless it be the first meeting of the Board, need not be held.
At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as
originally called. Except as provided in Article III of these Bylaws,
the directors shall act only as a Board and the individual directors
shall have no power as such.
Section 10. Organization. At each meeting of the Board, the
Chairman of the Board (or, if there is no Chairman of the Board, or in
his absence or inability to act, the President of the Corporation, or,
in his absence or inability to act, another director chosen by a
majority of the directors present) shall act as chairman of the meeting
and preside thereat. The Secretary (or, in his absence or inability to
act, any person appointed by the Chairman) shall act as secretary of
the meeting and keep the minutes thereof.
Section 11. Resignations. Any director of the Corporation may
resign at any time by giving written notice of his resignation to the
Board or the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its
receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 12. Vacancies. Any director elected to fill a vacancy
resulting from an increase in such class shall hold office for a term
that shall coincide with the remaining term of that class. In no event
will a decrease in the number of directors shorten the term of any
incumbent director. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled only by a
majority of the Board of Directors then in office, and any other
vacancy occurring in the Board of Directors may be filled only by a
majority of the directors then in office, although less than a quorum,
or by a sole remaining director. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall
have the same remaining terms as that of his or her predecessor. If
there are no directors in office, then an election of directors may be
held in the manner provided by statutes. If, at the time of filling
any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or holders of at
least ten percent of the votes of the shares at the time outstanding
having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then
in office. Except as otherwise provided in these Bylaws, when one or
more directors shall resign from the Board, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office as
provided in this section in the filling of other vacancies.
Section 13. Removal of Directors. A director may be removed
only for cause by the affirmative vote of a majority of the Board of
Directors or a majority of the votes of the issued and outstanding
stock entitled to vote for the election of directors of the Corporation
given at a special meeting of the stockholders called and held for the
purpose.
Section 14. Compensation. The Board shall have authority to fix
the compensation, including fees and reimbursement of expenses, of
directors for services to the Corporation in any capacity, provided, no
such payment shall preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor.
Section 15. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board or of any committee
thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
Board or committee.
Section 16. Telephone Conference Meetings. The members of the
Board or any committee thereof designated by the Board, may participate
in a meeting of the Board or any such committee of the Board by means
of conference telephone by means of which all persons participating in
the meeting can hear each other, and participation in a meeting
pursuant to this Section 16 of Article II shall constitute presence in
person at such meeting.
Section 17. Independent Directors. (a) Majority of Board's
Nominees in Annual Proxy Statement for Election to Board of Directors
to be Independent. A majority of the individuals to constitute the
nominees of the Board of Directors for the election of whom the Board
will solicit proxies from the stockholders for use at the Corporation's
annual meeting shall consist of individuals who, on the date of their
selection as the nominees of the Board of Directors, would be
Independent Directors.
(b) Directors Elected by Board of Directors. In the event the
Board of Directors elects directors between annual meetings of
stockholders, the number of such directors who qualify as Independent
Directors on the date of their nomination shall be such that the
majority of all directors holding office immediately thereafter shall
have been Independent Directors on the date of the first of their
nomination or selection as nominees of the Board of Directors.
(c) Definition of Independent Director. For purposes of this
Bylaw, the term "Independent Director" shall mean a director who: (i)
is not and has not been employed by the Corporation or its subsidiaries
in an executive capacity within five years immediately prior to the
annual meeting at which the nominees of the Board of Directors will be
voted upon; (ii) is not (and is not affiliated with a company or firm
that is) a significant advisor or consultant to the Corporation or its
subsidiaries; (iii) is not affiliated with a significant customer or
supplier of the Corporation or its subsidiaries; (iv) does not have
significant personal services contract(s) with the Corporation or its
subsidiaries; (v) is not affiliated with a tax-exempt entity that
receives significant contributions from the Corporation or its
subsidiaries; and (vi) is not a spouse, parent, sibling or child of any
person described by (i) through (v).
(d) Interpretation and Application of This Bylaw. The Board of
Directors shall have the exclusive right and power to interpret and
apply the provisions of this Bylaw, including, without limitation, the
adoption of written definitions of terms used in and guidelines for the
application of this Bylaw (any such definitions and guidelines shall be
filed with the Secretary, and such definitions and guidelines as may
prevail shall be made available to any stockholder upon written
request); any such definitions or guidelines and any other
interpretation or application of the provisions of this Bylaw made in
good faith shall be binding and conclusive upon all holders of the
issued and outstanding capital stock of the Corporation, provided that,
in the case of any interpretation or application of this Bylaw by the
Board of Directors to a specific person which results in such person
being classified as an Independent Director, the Board of Directors
shall have determined that such person is independent of management and
free from any relationship that, in the opinion of the Board of
Directors, would interfere with such person's exercise of independent
judgment as a Board member.
ARTICLE III
Executive and Other Committees
Section 1. Executive and Other Committees. The Board may, by
resolution passed by a majority of the whole Board, designate an
Executive Committee and one or more committees, each committee to
consist of three or more of the directors of the Corporation. The
Board may designate one or more directors as alternative members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided
in the resolution shall have and may exercise all powers of the Board
in the management of the business and affairs of the Corporation which
the Board may lawfully delegate, including the power to declare
dividends and to authorize the issuance of stock, and may authorize the
seal of the Corporation to be affixed to all papers which may require
it; provided, however, that 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
he or they constitute a quorum, may unanimously appoint another member
of the Board to act at the meeting in the place of any such absent or
disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such minutes to the Board when required.
All such proceedings shall be subject to revision or alteration by the
Board; provided, however, that third parties shall not be prejudiced by
such revision or alteration.
Section 2. General. A majority of any committee may determine
its action and fix the time and place of its meetings, unless the Board
shall otherwise provide. Special meetings of any committee may also be
called by the Chairman of the Board. Notice of such meetings shall be
given to each member of the committee in the manner provided for in
Article II, Section 8. The Board shall have power at any time to fill
vacancies in, to change the membership of, or to dissolve any such
committee.
Section 3. Compensation and Nominating Committees. The Board may,
by resolution passed by a majority of the whole Board and in accordance
with Section 1 of this Article III, designate a Compensation Committee
and/or a Nominating Committee, each of which shall have such duties as
may be assigned by the Board from time to time. Each member of the
Compensation Committee and each member of the Nominating Committee
shall be an Independent Director (as that term is defined in Article
II, Section 17 (c) of these Bylaws).
ARTICLE IV
Officers
Section 1. Number and Qualifications. All officers of the
Corporation shall be elected or appointed by the Board. The officers
shall be a President, one or more Vice Presidents, a Secretary, a
Treasurer, and a Controller. The Board may also elect a Chairman of
the Board, a Vice Chairman of the Board, a Chairman of the Executive
Committee, and one or more Assistant Secretaries, Assistant Treasurers,
and Assistant Controllers, and the Board may designate any Vice
President as an Executive Vice President, a Senior Vice President, or a
Group Vice President. Any two or more offices may be held by the same
person. The Chairman of the Board, the Vice Chairman of the Board, the
Chairman of the Executive Committee, and the President shall be chosen
from among the directors, but no other officer need be a director.
Section 2. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to the
Board, the President or the Secretary. Any such resignation shall take
effect at the time specified therein, or, if the time when it shall
become effective shall not be specified therein, immediately upon its
receipt; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation may
be removed, either with or without cause, at any time, by the vote of
the majority of the entire Board at any meeting of the Board, or,
except in the case of an officer or agent elected or appointed by the
Board, by the Chairman of the Board. Such removal shall be without
prejudice to the contractual rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising
from death, resignation, removal or any other cause, may be filled for
the unexpired portion of the term of the office which shall be vacant,
in the manner prescribed in these Bylaws for the regular election or
appointment to such office.
Section 5. The Chairman of the Board. The Chairman of the Board
shall preside at and be Chairman of all meetings of the stockholders
and of the Board, if present. The Chairman of the Board shall be the
chief executive officer of the Corporation and shall have general
supervision and authority over the business and affairs of the
Corporation subject to the control of the Board, and he shall perform
such other duties as may be prescribed from time to time by the Board.
In the absence or inability of the Chairman of the Board to act, or in
the event of a vacancy in the office of Chairman of the Board, the
President of the Corporation shall have all the rights and powers and
shall perform all the duties of the Chairman of the Board as are vested
in or required of him by these Bylaws.
Section 6. The President. The President shall be the chief
operating officer of the Corporation and shall perform such duties as
may be prescribed from time to time by the Chairman of the Board.
Section 7. Vice Presidents. Each Vice President shall perform
such duties and have such powers as shall from time to time be
prescribed by the Board or as shall from time to time be assigned to
him by the Chairman of the Board.
Section 8. Secretary. The Secretary shall act as custodian of
the minutes of all meetings of the Board and of the stockholders and
any committees of the Board which keep formal minutes, shall have
charge of the corporate seal and the corporate minute books and shall
make such reports and perform such other duties as may be assigned to
him from time to time by the Board or the Chairman of the Board. The
Assistant Secretaries, or any of them, shall perform such duties of the
Secretary as may from time to time be assigned to them by the Board,
the Chairman of the Board, or the Secretary.
Section 9. Treasurer. The Treasurer shall have custody of all
moneys and securities of the Corporation, and shall have responsibility
for disbursement of the funds of the Corporation and shall make payment
of the just demands on the Corporation as may be ordered by the Board,
shall invest surplus cash of the Corporation and manage its investment
portfolio under the direction of the Board, shall prepare and file tax
returns and pay all proper taxes of the Corporation and shall render to
the Board from time to time as may be required of him an account of all
his transactions and activities as Treasurer. The Treasurer shall also
perform such other duties as may be assigned to him from time to time
by the Board, the Chairman of the Board or by the Vice President-
Finance if there be an officer elected by the Board and serving in that
office at the time. The Assistant Treasurers, or any of them, shall
perform such of the duties of the Treasurer as may from time to time be
assigned to them by the Board, the Chairman of the Board or the Vice
President-Finance, if there be an officer elected by the Board and
serving in that office at the time, or the Treasurer.
Section 10. Controller. The Controller shall provide and
maintain a system of accounts and accounting records of the
Corporation, shall prepare from time to time and render to the Board
accounts of the financial condition of the Corporation as may be
required, shall provide and administer a system of internal financial
controls, and shall audit the books, records and affairs of the
Corporation. The Controller shall also perform such other duties as
may from time to time be assigned to him by the Board, the Chairman of
the Board or by the Vice President-Finance if there be an officer
elected by the Board and serving in that office at the time. The
Assistant Controllers, or any of them, shall perform such of the duties
of the Controller as may from time to time be assigned to them by the
Board, the Chairman of the Board, the Vice President-Finance if there
be an officer elected by the Board and serving in that office at the
time, or the Controller.
Section 11. Other Officers and Agents. The Board may from time
to time appoint such other officers and agents as it shall deem proper.
Each person so appointed shall hold the office to which appointed at
the pleasure of the Board and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
Section 12. Delegation of Authority. In case of the absence of
any officer of the Corporation, or for any other reason that the Board
may deem sufficient, the Board may delegate for the time being the
powers and duties of any of them to such other officer or person as the
Board shall determine.
Section 13. Officers' Bonds or Other Securities. If required by
the Board, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and
with such surety or sureties as the Board may require.
Section 14. Compensation. The compensation of the officers of
the Corporation for their services as such officers shall be fixed from
time to time by the Board; provided, however, that the Board may
delegate to a committee designated by the Board the power to fix the
compensation of officers of the Corporation. An officer of the
Corporation shall not be prevented from receiving compensation by
reason of the fact that he is also a director of the Corporation, but
any such officer who shall also be a director shall not have any vote
in the determination of the amount of compensation paid to him.
Section 15. Voting Corporation's Securities. The Chairman of the
Board shall have full power and authority on behalf of the Corporation,
in person or by proxy, to attend and to act and to vote at any meetings
of security holders of corporations in which the Corporation may hold
securities, and at such meetings, he or his proxy shall possess and may
exercise any and all rights and powers incident to the ownership of
such securities and which as the owner thereof the Corporation might
have possessed or exercised, if present. The Board may by resolution
from time to time confer like powers upon any other person or persons.
ARTICLE V
Indemnification
Section 1. Director Liability. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the stockholders of the
proposed amendment of Article FIFTEENTH of the Restated Certificate of
Incorporation to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so
amended. Any repeal or modification of this Section 1 by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of
such repeal or modification.
Section 2. Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason
of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted
prior thereto), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators; provided, however, that, except as
provided in Section 3 of this Article V with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the board of directors of the Corporation. The right
to indemnification conferred in this Article V shall be a contract
right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only
upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal
(hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise.
Section 3. Suits by Indemnitees. If a claim under Section 2 of
this Article V is not paid in full by the Corporation within sixty days
after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought
by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its
board of directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its board of directors,
independent legal counsel, or its stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption
that the indemnitee has not met the applicable standard of conduct or,
in the case of such a suit brought by the indemnitee, be a defense to
such suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under
this Section or otherwise shall be on the Corporation.
Section 4. Non-Exclusive Nature of Indemnification. The rights
to indemnification and to the advancement of expenses conferred in this
Article V shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the certificate of
incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the Corporation or other corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 6. Other Designated Persons Entitled to Indemnification.
The Corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification, and to the
advancement of expenses to any employee or agent of the Corporation to
the fullest extent of the provisions of this Article V with respect to
the indemnification and advancement of expenses of directors and
officers of the Corporation.
Section 7. Indemnification Agreements. The Corporation shall
have the express authority to enter such agreements as the board of
directors deems appropriate for the indemnification of present or
future directors and officers of the Corporation in connection with
their service to, or status with, the Corporation or any other
corporation, entity or enterprise with whom such person is serving at
the express written request of the Corporation.
ARTICLE VI
Deeds, Contract, Checks, Drafts, Bank Accounts, Etc.
Section 1. Deeds, Contracts and Other Instruments. Deeds,
mortgages, leases, contracts, and other instruments requiring the
signature of the Corporation shall be signed in such manner and by such
officer or officers or other person or persons as the Board may from
time to time prescribe. Unless authorized by the Board, an officer or
agent or employee shall not have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to
render it pecuniarily liable for any purpose or to any amount.
Section 2. Checks, Drafts and Notes. All checks or demands for
money and notes of the Corporation shall be signed by such officer or
officers or such other person or persons as may from time to time be
designated by the Board or by any officer or officers or person or
persons authorized to so designate by the Board. Facsimile signatures
may be authorized in any such case where authorized by the Board.
Section 3. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as the
Board may from time to time designate or as may be designated by any
officer or officers of the Corporation to whom such power of
designation may from time to time be delegated by the Board. For the
purpose of deposit and for the purpose of collection for the account of
the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be
endorsed, assigned and delivered by any officer or agent of the
Corporation, or in such other manner as the Board may determine by
resolution.
Section 4. General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositaries as
the Board may designate or as may be designated by any officer or
officers of the Corporation to whom such power of designation may from
time to time be delegated by the Board. The Board may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem
expedient.
ARTICLE VII
Shares, Etc.
Section 1. Stock Certificates. Each holder of stock of the
Corporation shall be entitled to have a certificate, in such form as
shall be approved by the Board, certifying the number of shares of
stock of the Corporation owned by him. The certificates representing
shares of stock shall be signed in the name of the Corporation by the
Chairman of the Board or the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer and sealed with the seal of the Corporation (which seal may
be a facsimile, engraved or printed); provided, however, if such
certificate is countersigned (1) by a transfer agent other than the
Corporation or its employee, or, (2) by a registrar other than the
Corporation or its employee, any other signature on the certificate may
be a facsimile. In case any officer, transfer agent, or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer
agent, or registrar at the date of issue.
Section 2. Books of Account and Record of Stockholders. The
books and records of the Corporation may be kept at such places, within
or without the State of Delaware, as the Board may from time to time
determine. The stock record books and the blank stock certificate
books shall be kept by the Secretary or by any other officer or agent
designated by the Board.
Section 3. Transfer of Shares. Transfer of shares of stock of
the Corporation shall be made on the stock records of the Corporation
only upon authorization by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary or with a transfer agent or transfer clerk,
and on surrender of the certificate or certificates for such shares
properly endorsed or accompanied by a duly executed stock transfer
power and the payment of all taxes thereon. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the
exclusive right of a person in whose name any share or shares stand on
the record of stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive
dividends or other distributions, and to vote as such owner, and the
Corporation may hold any such stockholder of record liable for calls
and assessments and the Corporation shall not be bound to recognize any
equitable or legal claim to or interest in any such share or shares on
the part of any person whether or not it shall have express or other
notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and
transferee request the Corporation to do so, such fact shall be stated
in the entry of the transfer.
Section 4. Regulations. The Board may make such additional rules
and regulations, not inconsistent with these Bylaws, as it may deem
expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation. It may appoint,
or authorize any officer or officers to appoint, one or more transfer
agents or one or more transfer clerks and one or more registrars and
may require all certificates for shares of stock to bear the signature
or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder
of any certificate representing shares of stock of the Corporation
shall immediately notify the Corporation of any loss, destruction or
mutilation of such certificate, and the Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued
by it which the owner thereof shall allege to have been lost, stolen,
or destroyed or which shall have been mutilated, and the Board may, in
its discretion, require such owner or his legal representatives to give
to the Corporation a bond in such sum, limited or unlimited, and in
such form and with such surety or sureties as the Board in its absolute
discretion shall determine, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss,
theft, or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the
Board, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws of the
State of Delaware.
Section 6. Stockholder's Right of Inspection. No stockholder
shall have any right to inspect any book, account, record or other
document of the Corporation unless such right shall be conferred upon
him by an express statutory provision or by resolution duly adopted by
the Board or by the stockholders.
Section 7. Fixing of Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date
for the adjourned meeting.
ARTICLE VIII
Catastrophe or Emergency Conditions
Section 1. Emergency Management Committee. Anything in these
Bylaws to the contrary notwithstanding, the management of the property
and business of the Corporation shall automatically vest in the
Emergency Management Committee, hereafter provided for, during any
period of catastrophe or emergency due to enemy action or otherwise
where as a result a quorum of the Board is not available or capable of
acting.
Section 2. Selection and Powers. The Board may from time to time
determine who shall be members of the Emergency Management Committee,
the number thereof required to constitute a quorum, and the powers
which such committee shall have. Unless and until so determined by the
Board the following shall apply:
Members. The members of the Emergency Management Committee
shall consist of all readily available directors and all readily
available officers of the Corporation other than Assistant Secretaries
and Assistant Treasurers. Two members shall constitute a quorum; and
Powers. During the period of catastrophe or emergency and
until a quorum of the Board can be convened, the Emergency Management
Committee shall have and exercise all powers and duties of the Board in
the management of the property and business of the Corporation;
provided, however, that such committee shall be without power
(a) to fill vacancies in the Board of any committee; or
(b) to sell, mortgage or otherwise dispose of all or any
substantial portion of the Corporation's assets; or
(c) to authorize any contract other than in the ordinary
course of business.
Section 3. Assumption of Offices During Emergency. The Board or
the Executive Committee may by resolution determine what person or
persons shall during any period of emergency or catastrophe, when the
office of the President or any other office be vacant or the President
or any other officer be absent or unable to act, assume the power and
duties of the President or of any other officer of the Corporation, the
manner of selecting the same, and under what circumstances and for what
duration they shall act. The person or persons so appointed, shall
during any such period have and exercise all of the powers and duties
of the President or such other office.
Section 4. Board of Directors to Resume Control. The Emergency
Management Committee shall attempt to convene a quorum of the Board at
the earliest possible date after the occurrence of an event described
in Section 1 of this Article VIII. In the event that it appears
impossible to convene such a quorum, the Emergency Management Committee
shall call a special meeting of stockholders at the earliest
practicable date to remove directors who are unable to act and to elect
new directors to fill vacancies caused by death or by such removals.
As soon as a quorum can be convened, the Board shall resume the
management of the property and business of the Corporation, and the
Emergency Management Committee shall thereupon be discharged.
Section 5. Powers of Board of Directors. The Board is hereby
authorized from time to time to make any other or additional or
contrary provisions for the continued management of the property and
business of the Corporation during any period of catastrophe or
emergency of sufficient severity to prevent the Board from exercising
such management as contemplated in these Bylaws.
ARTICLE IX
Offices
Section 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall at be 1209 Orange Street,
Wilmington, Delaware. The name of the resident agent in charge thereof
shall be The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have an
office or offices other than said principal office at such place or
places, either within or without the State of Delaware, as the Board
shall from time to time determine or the business of the Corporation
may require.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
March in each year and shall end on the last day of February next
following unless otherwise determined by the Board.
ARTICLE XI
Seal
The Board shall provide a corporate seal, which shall be in the
form of the name of the Corporation and the words "Corporate Seal,
Delaware."
ARTICLE XII
Amendments
Except for Section 11 of Article I and Sections 3, 12 and 13 of
Article II of these Bylaws, these Bylaws may be amended or repealed, or
new Bylaws may be adopted, at any annual or special meeting of the
stockholders, by a majority of the total votes validly cast thereon
provided, however, that the notice of such meeting shall have been
given as provided in these Bylaws, which notice shall mention that
amendment or repeal of these Bylaws, or the adoption of new Bylaws, is
one of the purposes of such meeting. These Bylaws may also be amended
or repealed, or new Bylaws may be adopted, by the Board; provided,
however, that Bylaws adopted by the Board may be amended or repealed by
the stockholders as hereinabove provided. Notwithstanding the
foregoing, Section 11 of Article I and Sections 3, 12 and 13 of Article
II of these Bylaws shall not be altered, amended or repealed and no
provisions inconsistent therewith shall be adopted without the
affirmative vote of the holders of 80% of all shares of stock of the
Corporation entitled to vote on all matters that may come before each
meeting of stockholders, voting together without regard to class.