RESTATED
BYLAWS
OF
MORRISON RESTAURANTS INC.
As in effect May 5, 1995
[Restated to reflect (i) change in name of RTMC Acquisition Incorporated to
Morrison Incorporated following the reincorporation in September 1987, (ii)
amendment to Section 7.1 adopted on September 26, 1989, (iii) change in name
from Morrison Incorporated to Morrison Restaurants Inc. on September 30, 1992,
(iv) amendments to Sections 3.2, Section 4.1 and 4.2 adopted on January 5, 1994
and (v) amendments to Sections 4.1 and 4.2 adopted on January 5, 1995, effective
as of May 5, 1995.]
INDEX
Page
ARTICLE I. OFFICES 1
ARTICLE II. STOCKHOLDERS' MEETINGS 1
SECTION 2.1 Places of Meetings 1
SECTION 2.2 Annual Meetings 1
SECTION 2.3 Special Meetings 1
SECTION 2.4 Meetings Without Notice 1
SECTION 2.5 Voting 1
SECTION 2.6 Quorum 2
SECTION 2.7 List of Stockholders 2
SECTION 2.8 Action Without Meeting 2
ARTICLE III. BOARD OF DIRECTORS 2
SECTION 3.1 Powers 2
SECTION 3.2 Number, Qualification and Term 2
SECTION 3.3 Compensation 3
SECTION 3.4 Meetings and Quorum 3
SECTION 3.5 Executive Committee 4
SECTION 3.6 Other Committees 4
SECTION 3.7 Conference Telephone Meetings 5
SECTION 3.8 Action Without Meeting 5
ARTICLE IV. OFFICERS 5
SECTION 4.1 Titles and Election 5
SECTION 4.2 Duties 6
(a) Chairman of the Board of Directors 6
(b) Vice Chairman of the Board of Directors 6
(c) President 6
(d) Vice President 6
(e) Secretary 7
(f) Treasurer 7
SECTION 4.3 Chief Executive Officer and Chief Operating Officer 7
SECTION 4.4 Chief Financial Officer and Chief Accounting Officer 7
SECTION 4.5 Delegation of Authority 7
SECTION 4.6 Compensation 8
ARTICLE V. RESIGNATIONS, VACANCIES AND REMOVALS 8
SECTION 5.1 Resignations 8
SECTION 5.2 Vacancies 8
(a) Directors 8
(b) Officers 8
SECTION 5.3 Removals 8
(a) Directors 8
(b) Officers 8
ARTICLE VI. CAPITAL STOCK 9
SECTION 6.1 Certificates of Stock 9
SECTION 6.2 Transfer of Stock 9
SECTION 6.3 Stock Transfer Records 9
SECTION 6.4 Record Dates 9
SECTION 6.5 Lost Certificates 10
ARTICLE VII. FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC. 10
SECTION 7.1 Fiscal Year 10
SECTION 7.2 Bank Deposits, Checks, Etc. 10
ARTICLE VIII. BOOKS AND RECORDS 10
SECTION 8.1 Place of Keeping Books 10
SECTION 8.2 Examination of Books 10
ARTICLE IX. NOTICES 11
SECTION 9.1 Requirements of Notice 11
SECTION 9.2 Waivers 11
ARTICLE X. SEAL 11
ARTICLE XI. POWERS OF ATTORNEY 11
ARTICLE XII. INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER PERSONS 12
SECTION 12.1Action Other Than by or in the Right of the Corporation 12
SECTION 12.2Action by or in the Right of the Corporation 12
SECTION 12.3Determination of Right of Indemnification 12
SECTION 12.4Indemnification Against Expenses of Successful Party 13
SECTION 12.5Advances of Expenses 13
SECTION 12.6Right of Agent to Indemnification Upon Application;
Procedure Upon Application 13
SECTION 12.7Other Rights and Remedies 13
SECTION 12.8Insurance of Agents 14
SECTION 12.9Certain Definitions 14
SECTION 12.10 Indemnification of Other Persons 14
SECTION 12.11 Survival of Indemnification 14
SECTION 12.12 Savings Clause 14
ARTICLE XIII AMENDMENTS 15
MORRISON RESTAURANTS INC.
RESTATED BYLAWS
ARTICLE I
OFFICES
The Corporation shall at all times maintain a registered office in the
State of Delaware and a registered agent at that address but may have other
offices located in or outside of the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 Places of Meetings. All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the
notice of meeting or waiver of notice thereof, subject to any provisions of
the laws of the State of Delaware.
2.2 Annual Meetings. The annual meeting of stockholders shall be held
on such date in the month of September each year and at such time as shall be
determined by the Board of Directors from time to time or with respect to any
particular annual meeting for the purpose of electing directors and
transacting such other business as may come properly before the meeting.
Written notice of the date, time and place of the annual meeting shall be
given by mail to each stockholder entitled to vote at his address as it
appears on the records of the Corporation not less than ten (10) nor more than
sixty (60) days prior to the scheduled date thereof, unless such notice is
waived as provided by Article IX of these Bylaws.
2.3 Special Meetings. A special meeting of stockholders may be called
at any time by the Board of Directors, the Chairman of the Board of Directors
or the President. Written notice of the time, place and specific purposes of
such meeting shall be given by mail to each stockholder entitled to vote
thereat at his address as it appears on the records of the Corporation not
less than ten (10) nor more than sixty (60) days prior to the scheduled date
thereof, unless such notice is waived as provided in Article IX of these
Bylaws.
2.4 Meetings Without Notice. Meetings of the stockholders may be held
at any time without notice when all the stockholders entitled to vote thereat
are present in person or by proxy.
2.5 Voting. At all meetings of stockholders, each stockholder entitled
to vote on the record date as determined under Article VI, Section 6.3 of
these Bylaws, or if not so determined, as prescribed under the laws of the
State of Delaware, shall be entitled to one vote for each share of stock
standing of record in his name, subject to any restrictions or qualifications
set forth in the Certificate of Incorporation, and may vote either in person
or by proxy.
2.6 Quorum. At any meeting of stockholders, a majority of the number
of shares of stock outstanding and entitled to vote thereat, present in person
or by proxy, shall constitute a quorum, but a smaller interest may adjourn any
meeting from time to time, and the meeting may be held as adjourned without
further notice, subject to such limitation as may be imposed under the laws
of the State of Delaware. At any such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at
the originally scheduled meeting.
When a quorum is present at any meeting, a majority of the number of
shares of stock entitled to vote present thereat shall decide any question
brought before such meeting, unless the question is one upon which a different
vote is required by express provision of the laws of the State of Delaware,
or the Certificate of Incorporation or these Bylaws, in which case such
express provision shall govern.
2.7 List of Stockholders. At least ten (10) days before every meeting,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation. Such
list shall be open for examination by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, 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 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. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of the Corporation or
to vote in person or by proxy at such meeting.
2.8 Action Without Meeting. Any action required by the laws of the
State f Delaware or the Certificate of Incorporation to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by all the holders of
outstanding stock entitled to vote at such meeting.
ARTICLE III
BOARD OF DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which shall
have all the powers authorized by the laws of the State of Delaware, subject
to such limitations as may be provided by the Certificate of Incorporation or
these Bylaws.
3.2 Number, Qualification and Term. The initial number of directors
shall be such as may be determined by the incorporator(s) and thereafter the
number of directors shall be not less than nine (9) and not more than twelve
(12), the exact number within such minimum and maximum limits to be fixed and
determined from time to time by resolution of a majority of the Board of
Directors or by the affirmative vote of the holders of at least 80% of all
outstanding shares of capital stock entitled to vote in the election of
directors, voting together as a single class, as provided in the Certificate
of Incorporation.
Directors shall be of full age, and no person shall be nominated for the
Board of Directors who shall have attained the age of seventy (70) on or
before the annual meeting of stockholders at which directors are elected,
provided, however, under special conditions in the best interests of the
Corporation, as determined by the Board of Directors or the shareholders, a
person may be nominated for the Board of Directors who has attained the age
of seventy (70) before such meeting. Directors need not be residents of the
State of Delaware, however, directors must be stockholders of the Corporation.
The initial Board of Directors shall be elected by the incorporator(s).
Thereafter, Directors shall be elected at the annual meeting of stockholders
by a plurality of the votes cast at such election. Each director shall serve
until the election and qualification of his successor or until his earlier
death, resignation or removal as provided in the Certificate of Incorporation
and these Bylaws. In case of an increase in the number of directors between
elections by the stockholders, the additional directorships shall be
considered vacancies and shall be filled in the manner prescribed in Article
V of these Bylaws.
The Board of Directors may, by majority vote, elect a Chairman of the
Board of Directors. The Chairman shall be a member of the Board and shall
preside at all meetings of the stockholders and of the Board of Directors and
shall have such other powers and perform such other duties as the Board of
Directors may prescribe from time to time.
3.3 Compensation. The Board of Directors, or a committee thereof, may
from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for attendance at all meetings of the
Board of Directors or any committee thereof, and determine the amount of such
fees and compensation. Directors shall in any event be paid their traveling
expenses for attendance at all meetings of the Board of Directors or any
committee thereof. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor in amounts authorized or otherwise approved from time
to time by the Board of Directors or a committee thereof.
3.4 Meetings and Quorum. Meetings of the Board of Directors may be
held either in or outside of the State of Delaware. A quorum shall be one-
third (1/3) of the number of directors then fixed in the manner provided in
Section 3.2 of this Article but not less than two (2) directors. The act of
a majority of the directors present at a meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum is not present at any
meeting, the Directors who are present may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
is obtained, subject to such limitation as may be imposed under the laws of
the State of Delaware.
The Board of Directors shall, at the close of each annual meeting of
stockholders and without further notice other than these Bylaws, if a quorum
of directors is then present or as soon thereafter as may be convenient, hold
a regular meeting for the election of officers and the transaction of any
other business.
The Board of Directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held, meetings other than regular meetings may
be called at any time by the Chairman of the Board of Directors or the
President and must be called by the Chairman of the Board, the President, the
Secretary or an Assistant Secretary upon the request of at least three
directors.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director by mailing the
same to each director at his residence or business address at least two (2)
days before the meeting or by delivering the same to him personally or by
telephone or telegraph at least one (1) day before the meeting unless, in case
of exigency, the Chairman of the Board of Directors, the President, the
Secretary or an Assistant Secretary, as the case may be, shall prescribe a
shorter notice to be given personally or by telephone, telegraph, cable or
facsimile transmission to all or any one or more of the directors at their
respective residences or places of business. Notice will be deemed to have
been given at the time it is mailed, postage-prepaid, or sent by telegraph,
cable or facsimile transmission, or given by telephone, as the case may be.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the laws
of the State of Delaware, the Certificate of Incorporation or the Board of
Directors.
3.5 Executive Committee. The Board of Directors, by resolution adopted
by a majority of the number of directors then fixed in the manner provided in
Section 3.2 of this Article, may provide for an Executive Committee of three
or more directors and shall elect the members thereof to serve during the
pleasure of the Board of Directors. The Executive Committee shall elect its
own chairman, unless a chairman has been designated by the Board of Directors.
Special meetings of the Executive Committee may be called by the chairman of
the committee or by the Board of Directors, and notice of meetings of the
Executive Committee shall be given by the chairman of the committee or by the
Secretary, in the manner provided in Article IX of these Bylaws.
The Board of Directors may at any time change the membership of the
Executive Committee, fill vacancies in it, designate alternate members to
replace any absent or disqualified members at any meeting of the Executive
Committee, or dissolve it.
During the intervals between the meetings of the Board of Directors, the
Executive Committee shall possess and may exercise any or all of the powers
of the Board of Directors in the management or direction of the business and
affairs of the Corporation to the extent authorized by resolution adopted by
a majority of the number of directors then fixed in the manner provided in
Section 3.2 of this Article, subject to such limitations as may be imposed by
the laws of the State of Delaware.
Except as inconsistent with these Bylaws or the resolution of the Board
of Directors from time to time, the Executive Committee may determine its
rules of procedure and the notice to be given of its meeting, and it may
appoint such committees as it shall from time to time deem necessary. A
majority of the members of the Executive Committee shall constitute a quorum.
The Executive Committee shall keep minutes of its meetings and shall report
the same to the Board of Directors.
3.6 Other Committees. The Board of Directors may by resolution provide
for such other committees as it deems desirable and may discontinue the same
at its pleasure. Each such committee shall have the powers and perform such
duties, not inconsistent with law, as may be assigned to it by the Board of
Directors.
Each such committee shall elect its own chairman, unless a chairman has
been designated by the Board of Directors.
Except as inconsistent with these Bylaws or the resolution of the Board
of Directors from time to time, each such committee may determine its rules
of procedure and the notice to be given of its meeting, and it may appoint
such committees as it shall from time to time deem necessary. Special meetings
of any such committee may be called by the chairman of that committee or by
the Board of Directors, and notice of any meeting of any such committee shall
be given by the chairman of that committee or by the Secretary in the manner
provided in Article IX of these Bylaws. A majority of the members of any such
committee then in office shall constitute a quorum. Each such committee shall
keep minutes of its meetings and report the same to the Board of Directors.
3.7 Conference Telephone Meetings. Any one or more members of the
Board of Directors or any committee thereof may participate in a meeting by
means of a conference telephone or similar communication equipment by means
of which all persons participating in the meeting can hear each other, and
such participation shall constitute presence in person at such meeting.
3.8 Action Without Meeting. To the extent authorized by Delaware law,
any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Board of Director or committee.
ARTICLE IV
OFFICERS
4.1 Titles and Election. The officers of the Corporation shall be the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President, one or more Vice Presidents, the Secretary and the
Treasurer, who shall have such authority and perform such duties as may be
prescribed by the Board of Directors or as otherwise provided in these Bylaws.
The Board of Directors, in its discretion, may also at any time elect
or appoint such other officers as it may deem advisable, each of whom shall
have such authority and shall perform such duties as may be prescribed or
determined from time to time by the Board of Directors or, if not prescribed
or determined by the Board of Directors, as the Chairman of the Board, the
President or the then senior executive officer may prescribe or determine.
The Board of Directors may assign such additional titles and duties to
one or more of the officers as it shall deem appropriate.
Any person may hold more than one office if the duties can be
consistently performed by the same person.
The officers of the Corporation shall initially be elected as soon as
convenient by the Board of Directors and thereafter, in the absence of earlier
deaths, resignations or removals, shall be elected at the first meeting of the
Board of Directors following each annual meeting of stockholders. Each
officer shall hold office at the pleasure of the Board of Directors except as
may otherwise be approved by the Board of Directors, or until his earlier
resignation, removal or other termination of his employment.
The Board of Directors may require any officer or other employee or
agent to give bond for the faithful performance of his duties in such form and
with such sureties as the Board may require.
4.2 Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and duties:
(a) Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be a director and, when present, shall preside
at all meetings of the stockholders and of the Board of Directors and
shall have such other powers and perform such other duties as the Board
of Directors may prescribe from time to time.
(b) Vice Chairman of the Board of Directors. The Vice Chairman
of the Board of Directors shall be a director and, in the absence of the
Chairman of the Board, shall preside at all meetings of the stockholders
and of the Board of Directors and shall have such other powers and
perform such other duties as the Board of Directors may prescribe from
time to time.
(c) President. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his office
and shall perform such other duties as the Board of Directors shall
specify from time to time. In the absence or disability of the Chairman
of the Board, the President shall perform those duties of the Chairman
of the Board not assigned to the Vice Chairman of the Board, unless
otherwise provided by the Board of Directors.
(d) Vice President. The Vice President or Vice Presidents shall
perform such duties and have such powers as may be assigned to them from
time to time by the Board of Directors, the Chairman of the Board or the
President. Any Vice President may have the title of Executive Vice
President, Senior Vice President, Assistant Vice President or such other
title deemed appropriate by the Board of Directors from time to time.
In the absence or disability of the President, the Vice Presidents
in order of seniority may, unless otherwise determined by the Board of
Directors Or the Chairman of the Board, exercise the powers and perform
the duties pertaining to the office of the President.
(e) Secretary. The Secretary, or in his absence an Assistant
Secretary, shall keep the minutes of all meetings of stockholders and
of the Board of Directors and any committee thereof, cause all notices
to be duly given to and served on the stockholders and directors, attend
to such correspondence as may be assigned to him, keep or cause to be
kept in safe custody the seal and corporate records of the Corporation
and affix such seal to all such instruments properly executed as may
require it, have general charge of the stock transfer books of the
Corporation and shall in general perform all duties incident to his
office, and shall have such other duties and powers as may be prescribed
or determined from time to time by the Board of Directors, the Chairman
of the Board or the President.
In the absence or disability of the Secretary, the Assistant
Secretary, or if there he more than one, the Assistant Secretaries in
the order determined by the Board of Directors, or if no such
determination has been made, in the order of their election, shall
perform the duties and exercise the powers of the Secretary. Each
Assistant Secretary also shall perform such other duties and have such
other powers as may be assigned to him from time to time by the Board
of Directors, the Chairman of the Board or the President.
(f) Treasurer. The Treasurer shall have the care and custody of
and be responsible for the moneys, funds, securities, financial records
and other valuable papers of the Corporation (other than his own bond,
if any, which shall be in the custody of the President); shall keep full
and accurate accounts of receipts and disbursements and shall render
account thereof whenever required by the Board of Directors, the
Chairman of the Board or the President; shall have and perform, under
the supervision of the Board of Directors, all the powers and duties
commonly incident to his office: shall deposit or cause to be deposited
all funds of the Corporation in such bank or banks, trust company or
trust companies, or with such firm or firms doing a banking business as
may be designated by the Board of Directors, the Chairman of the Board
or the President; may endorse for deposit or collection all checks,
notes, and similar instruments payable to the Corporation or to its
order; and shall have such other duties as may be prescribed or
determined from time to time by the Board of Directors, the Chairman of
the Board or the President.
In the absence or disability of the Treasurer, the Assistant
Treasurer, or if there be more than one, the Assistant Treasurers in the
order determined by the Board of Directors, or if no such determination
has been made, in the order of their election, shall perform the duties
and exercise the powers of the Treasurer and such other duties as may
be assigned to them from time to time by the Board of Directors: the
Chairman of the Board or the President.
4.3 Chief Executive Officer and Chief Operating Officer. In its
discretion, the Board of Directors may designate either the Chairman of the
Board or the President to serve as the Chief Executive Officer or the Chief
Operating Officer, or both, of the Corporation.
The Chief Executive Officer shall, subject to the direction and control
of the Board of Directors, have general supervision, direction and control of
the business and officers of the Corporation and have the powers and duties
otherwise customary to the office.
The Chief Operating Officer shall, subject to the direction and control
of the Board of Directors, have general supervision, management and control
of the operations and personnel of the Corporation and the powers and duties
otherwise customary to the office.
4.4 Chief Financial Officer and Chief Accounting Officer. In its
discretion, the Board of Directors may at any time designate any officer as
the Chief Financial Officer, the Chief Accounting Officer, or both, of the
Corporation.
4.5 Delegation of Authority. The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any other
officer, director or employee.
4.6 Compensation. The compensation of the officers shall be fixed by
the Board of Directors or a committee thereof and the fact that any officer
is a director shall not preclude him from receiving compensation or from
voting upon the resolution providing the same.
ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
5.1 Resignations. Any director or officer may resign at any time by
giving written notice thereof to the Board of Directors, the Chairman of the
Board, the President or the Secretary. Any such resignation shall take effect
at the time specified therein or, if the time be not specified, upon receipt
thereof; and unless otherwise specified therein, the acceptance of any
resignation shall not be necessary to make it effective.
5.2 Vacancies.
(a) Directors. Any vacancy in the Board of Directors caused by
reason of death, incapacity, resignation, removal, increase in the
authorized number of directors or otherwise may be filled by a majority
vote of the remaining directors though less than a quorum, or by the
sole remaining director.
Any director so elected by the Board of Directors shall serve
until the next annual meeting of stockholders at which directors of the
class in which such director serves are to be elected and until the
election and qualification of his successor or until his earlier death,
resignation or removal as provided in the Certificate of Incorporation
or these Bylaws. The Board of Directors also may reduce their
authorized number by the number of vacancies in the Board, provided such
reduction does not reduce the Board to less than the minimum authorized
by the laws of the State of Delaware or to less than the number of
directors then in office.
(b) Officers. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
5.3 Removals.
(a) Directors. The entire Board of Directors, or any individual
member thereof, may be removed only as provided in the Certificate of
Incorporation.
(b) Officers. Subject to the provisions of any validly existing
agreement, the Board of Directors may at any meeting remove from office
any officer, with or without cause, and may elect or appoint a
successor.
ARTICLE VI
CAPITAL STOCK
6.1 Certificates of Stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors,
duly numbered and setting forth the number and kind of shares represented
thereby. Such certificates shall be signed by the Chairman of the Board, the
Vice Chairman of the Board, the President or Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.
If and to the extent permitted by Delaware law, any or all of such signatures
may be in facsimile if the certificate is manually signed on behalf of a
transfer agent or a registrar, other than the Corporation itself or an
employee of the Corporation.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if he were such officer, transfer agent or registrar
at the date of issue.
6.2 Transfer of Stock. Shares of the capital stock of the Corporation
shall be transferable only upon the books of the Corporation upon the
surrender of the certificate or certificates properly assigned and endorsed
for transfer.
The Board of Directors may appoint a transfer agent and one or more co-
transfer agents and a registrar and one or more co-registrars and may make or
authorize such agents to make all such rules and regulations deemed expedient
concerning the issue, transfer and registration of shares of stock. If the
Corporation has a transfer agent or registrar acting on its behalf, the
signature of any officer or representative thereof may be in facsimile.
6.3 Stock Transfer Records. Unless the Corporation has a stock
transfer agent to keep such records, the Secretary shall keep a stock book or
books containing the names, alphabetically arranged, with the address of every
stockholder showing the number of shares of each kind, class or series of
stock held of record.
The person in whose name shares of stock stand on the books of the
Corporation shall be deemed by the Corporation to be the owner thereof for all
purposes.
6.4 Record Dates. 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 of Directors shall fix in
advance a record date which, in the case of a meeting, shall not be less than
ten (10) nor more than sixty (60) days prior to the scheduled date of such
meeting and which, in the case of any other action, shall be not more than
sixty (60) days prior to any such action permitted by the laws of the State
of Delaware.
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 of Directors may fix a new record
date for the adjourned meeting.
6.5 Lost Certificates. In case of loss, mutilation or destruction of
a stock certificate, a duplicate certificate may be issued upon such terms as
may be determined or authorized by the Board of Directors, the Chairman of the
Board or the President.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
7.1 Fiscal Year. The fiscal year of the Corporation shall end on the
first Saturday following May 30 each year.
7.2 Bank Deposits, Checks, Etc. The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be
designated from time to time by the Board of Directors, or by such officer or
officers as the Board of Directors may authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from any
bank account shall be signed by such person or persons as may be designated
from time to time by the Board of Directors. The signatures on checks, drafts
or other orders for the withdrawal of funds may be in facsimile if authorized
in the designation.
ARTICLE VIII
BOOKS AND RECORDS
8.1 Place of Keeping Books. The books and records of the Corporation
may be kept in or outside of the State of Delaware, as the Board of Directors
may from time to time determine.
8.2 Examination of Books. Except as may otherwise be provided by the
laws of the State of Delaware, the Certificate of Incorporation or these
Bylaws, the Board of Directors shall have power to determine from time to time
whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the Corporation are to
be open to the inspection of any stockholder. No stockholder shall have any
right to inspect any account or book or document of the Corporation except as
prescribed by law or authorized by express resolution of the stockholders or
of the Board of Directors.
ARTICLE IX
NOTICES
9.1 Requirements of Notice. Whenever notice is required to be given
by statute, the Certificate of Incorporation or these Bylaws, it shall not
mean personal notice unless so specified, but such notice may be given in
writing by depositing the same in a post office, letter box, or mail chute
postage prepaid and addressed to the person to whom such notice is directed
at the address of such person on the records of the Corporation, and such
notice shall be deemed given at the time when the same shall be thus mailed.
9.2 Waivers. Any stockholder, director or officer may, in writing or
by telegram or cable, at any time waive any notice or other formality required
by statute, the Certificate of Incorporation or these Bylaws. Such waiver of
notice, whether given before or after any meeting or action, shall be deemed
equivalent to notice. Presence of a stockholder either in person or by proxy
at any meeting of stockholders and presence of any director at any meeting of
the Board of Directors shall constitute a waiver of such notice as may be
required by any statute, the Certificate of Incorporation or these Bylaws.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the Board
of Directors shall determine from time to time and may consist of a facsimile
thereof or the words "Corporate Seal" or "Seal" enclosed in parentheses.
In the absence of the Secretary, any other officer of the Corporation
may affix and attest the seal of the Corporation to any instrument requiring
it, unless otherwise provided by resolution of the Board of Directors.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of the
Corporation to execute powers of attorney delegating to named representatives
or agents power to represent or act on behalf of the Corporation, with or
without power of substitution.
In the absence of any action by the Board of Directors, any officer of
the Corporation may execute for and on behalf of the Corporation waivers of
notice of meetings of stockholders and proxies for such meetings of any
company in which the Corporation may hold voting securities.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER PERSONS
12.1 Action Other Than by or in the Right of the Corporation. Subject
to Section 12.3 hereof, 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,
and whether external or internal to the Corporation (other than a judicial
action or suit brought by or in the right of the Corporation), by reason of
the fact that he is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(all such persons being referred to hereafter as an "Agent"), against expenses
(including attorneys' fees), judgments. fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in an manner he 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 his 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 he reasonably
believed to be in or not opposed to the best interests of the Corporation, and
with respect to any criminal action or proceeding, that he had reasonable
cause to believe that his conduct was unlawful.
12.2 Action by or in the Right of the Corporation. 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 judicial action or suit
brought by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was an Agent against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery 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 of such expenses which the Court
of Chancery or other such court shall deem proper.
12.3 Determination of Right of Indemnification. Any indemnification
under Sections 12.1 or 12.2 hereof (unless ordered by a court) shall be made
by the Corporation unless a determination is reasonably and promptly made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who are or were not parties to such action, suit or proceeding, or
(ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders, that such person acted in bad
faith and in a manner that such person did not believe to be in or not opposed
to the best interests of the Corporation, or, with respect to any criminal
proceeding, that such person believed or had reasonable cause to believe that
his conduct was unlawful.
12.4 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article XII, to the extent that
an Agent has been successful on the merits or otherwise, including the
dismissal of an action without prejudice or the settlement of an action
without admission of liability, in defense of any proceeding or in defense of
any claim, issue or matter therein, such Agent shall be indemnified against
all expenses incurred in connection therewith.
12.5 Advances of Expenses. Except as limited by Section 12.6. expenses
incurred in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount
in the event that it is ultimately determined, as provided herein, that such
person is not entitled to indemnification. However, no advance shall be made
by the Corporation if a determination is reasonably and promptly made by the
Board of Directors by a majority vote of a quorum of disinterested directors,
or (if such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs) by independent legal counsel in a written
opinion, that, based upon the facts known to the Board of Directors or counsel
at the time such determination is made, such person acted in bad faith and in
a manner that such person did not believe to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal proceeding,
that such person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Board
of Directors or independent legal counsel reasonably determines that such
person deliberately breached his duty to the Corporation or its stockholders.
12.6 Right of Agent to Indemnification Upon Application; Procedure Upon
Application. Any indemnification under Sections 12.2, 12.3 and 12.4 hereof
or advance under Section 12.5 hereof shall be made promptly and in any event
within 45 days, upon the written request of the Agent, unless with respect to
applications under Sections 12.2, 12.3 or 12.5 hereof, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of
a quorum of disinterested directors that such Agent acted in a manner set
forth in such Sections as to justify the Corporation not indemnifying or
making an advance to the Agent. In the event no quorum of disinterested
directors is obtainable, the Board of Directors shall promptly direct that
independent legal counsel shall decide whether the Agent acted in the manner
set forth in such Sections as to justify the Corporation not indemnifying or
making an advance to the Agent. The right to indemnification or advances as
granted by this Article XIl shall be enforceable by the Agent in any court of
competent jurisdiction if the Board of Directors or independent legal counsel
denies the claim, in whole or in part, or if no disposition of such claim is
made within 45 days. The Agent's expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part,
in any such proceeding shall also be indemnified by the Corporation.
12.7 Other Rights and Remedies. The indemnification provided by this
Article XII shall not be deemed exclusive of any other rights to which an
Agent seeking indemnification may be entitled under any agreement, vote of
stockholders or disinterested directors, court order or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. It is the policy of the Corporation that indemnification
of Agents shall be made to the fullest extent permitted by law. All rights
to indemnification under this Article XII shall be deemed to be provided by
a contract between the Corporation and the Agent who serves in such capacity
at any time while these Bylaws and other relevant provisions of the General
Corporation Law of the State of Delaware and other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
12.8 Insurance of Agents. To the extent permitted by Delaware law, the
Corporation may purchase and maintain insurance on behalf of any person who
is or was an Agent against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such liability
under the provisions of this Article XII.
12.9 Certain Definitions. For purposes of this Article XII, references
to the "Corporation" shall include, in addition to the resulting or surviving
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 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 Article XII
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued; references to "other enterprises" in Section 1 shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed a person with respect to any employee benefit plan; and references
to "serving at the request of the Corporation" shall include any service as
a director or officer of the Corporation which imposes duties on, or involves
services by, such director or officer with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article XII.
12.10 Indemnification and Insurance of Other Persons. The provisions
of this Article XII shall not be deemed to preclude the Corporation from
either indemnifying or purchasing and maintaining insurance on behalf of, or
both, any person who is not an Agent but whom the Corporation has the power
or obligation to indemnify or insure under the provisions of the General
Corporation Law of the State of Delaware or otherwise. The Corporation may,
in its sole discretion, indemnify or insure, or both, an employee, trustee or
other agent as permitted by the General Corporation Law of the State of
Delaware. The Corporation shall indemnify or insure any employee, trustee or
other agent where required by law.
12.11 Survival of Indemnification. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article XII shall
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors and administrators of such Agent.
12.12 Savings Clause. If this Article XII or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Agent against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether internal or external, including
a grand jury proceeding and an action or suit brought by or in the right of
the Corporation, to the full extent permitted by any applicable portion of
this Article XII that shall not have been invalidated, or by any other
applicable law.
ARTICLE XIII
AMENDMENTS
Unless otherwise provided by law, the Certificate of Incorporation or
another provision of these Bylaws, these Bylaws may be amended or repealed
either:
(a) at any meeting of stockholders at which a quorum is present
by vote of the holders of a majority of the number of shares of stock
entitled to vote present in person or by proxy at such meeting as
provided in Article II, Sections 2.4 and 2.5 of these Bylaws, or
(b) at any meeting of the Board of Directors by a majority vote
of the directors then in office;
provided the notice of such meeting of stockholders or directors or waiver of
notice thereof contains a statement of the substance of the proposed amendment
or repeal.