SEABOARD CORPORATION
RESTATED BYLAWS
(As of March 6, 2006)
OFFICES
1. The principal office shall be in the City of
Wilmington, County of New Castle, State of Delaware, and the name
of the resident agent in charge thereof is Corporation Service
Company.
2. The corporation may also have an office in Merriam,
Kansas, and also offices at such other places as the board of
directors may from time to time determine or the business of the
corporation may require.
STOCKHOLDERS' MEETINGS
3. All meetings of the stockholders for the election
of directors shall be held at such place, if any, as may be fixed
from time to time by the board of directors, or at such other
place, if any, either within or without the State of Delaware as
shall be designated from time to time by the board of directors
and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or a duly executed waiver of
notice thereof.
4. An annual meeting of stockholders, commencing with
the year 2002, shall be held on the fourth Monday of April in
each year, if not a legal holiday, and if a legal holiday, then
on the next secular day following, at 10:00 a.m., or such other
date and time as the board of directors shall approve, at which
meeting the board of directors shall elect, by a majority
vote, the president, treasurer and secretary, and transact such
other business as may be properly brought before the meeting.
5. Whenever the stockholders are required or
permitted to take any action at a meeting, written notice of the
meeting shall be given which shall state the place, if any, date
and hour of the meeting, the means of remote communications, if
any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case
of a special meeting, the purpose or purposes for which the
meeting is called. The written notice of any meeting shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. If mailed, notice is given when deposited in the
United States mail, postage prepaid, directed to the stockholder
at such stockholder's address as it appears on the records of the
corporation. An affidavit of the secretary or an assistant
secretary or of the transfer agent or other agent of the
corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein..
A complete list of the stockholders entitled to
vote at a meeting of stockholders arranged in alphabetical order,
and showing the address of each stockholder and the
number of shares registered in the name of each stockholder,
shall be open to the examination of any stockholder for any
purpose germane to the meeting for a period of at least ten (10)
days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to
gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours, at the principal
place of business of the corporation. If the meeting is to be
held at a place, then the list shall 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. If the
meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to
access such list shall be provided within the notice of the
meeting.
6. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or
by the certificate of incorporation, may be called by the
president and shall be called by the president or secretary at
the request in writing of a majority of the board of directors.
Such request shall state the purpose or purposes of the proposed
meeting.
7. Business transacted at all special meetings shall
be confined to the objects stated in the call.
8. The holders of a majority in amount of the stock
issued and outstanding and entitled to vote thereat shall
constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by
statute, by the certificate of incorporation or by these bylaws.
If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders, entitled to
vote thereat, present in person or represented by proxy, shall
have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented any business may
be transacted which might have been transacted at the meeting as
originally notified.
9. When a quorum is present at a meeting for the
election of directors, a plurality of the votes cast shall be
significant to elect. All other questions presented to
stockholders at a meeting at which a quorum is present shall be
decided by the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy
unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation or of these
bylaws, a different vote is required in which case such express
provision shall govern and control the decision of such question.
10. At any meeting of the stockholders every
stockholder having the right to vote shall be entitled to vote
in person, or by proxy provided, however, that no such proxy
shall be voted on or acted upon after three years from its date,
unless said proxy provides for a longer period. Except as
otherwise provided in the certificate of incorporation, each
stockholder shall have one vote for each share of stock having
voting power, registered in his name on the books of the
corporation, and except where the transfer books of the
corporation shall have been closed or a date shall have been
fixed as a record date for the determination of its stockholders
entitled to vote, no share of stock
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shall be voted on at any election of directors which shall have
been transferred on the books of the corporation within twenty
(20) days next preceding such election of directors.
11. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will
vote at a meeting shall be announced at the meeting by the person
presiding over the meeting. The board of directors may adopt by
resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as
adopted by the board of directors, the person presiding over any
meeting of stockholders shall have the right and authority to
convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the
judgment of such presiding person, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the board of directors or prescribed by the
presiding person of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly
authorized and constituted proxies or such other persons as the
presiding person of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding
person at any meeting of stockholders, in addition to making
any other determinations that may be appropriate to the conduct
of the meeting, shall, if the facts warrant, determine and
declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should
so determine, such presiding person shall so declare to the
meeting and any such matter or business not properly brought
before the meeting shall not be transacted or considered. Unless
and to the extent determined by the board of directors or the
person presiding over the meeting, meetings of stockholders shall
not be required to be held in accordance with the rules
of parliamentary procedure.
12.
(A)
(1) Nominations of persons for election to the board
of directors of the corporation and the proposal of business
to be considered by the stockholders may be made at an
annual meeting of stockholders only (a) pursuant to the
corporation's notice of meeting (or any supplement thereto),
(b) by or at the direction of the board of directors or any
committee thereof, or (c) by any stockholder of the
corporation who was a stockholder of record of the
corporation at the time the notice provided for in this
Section 12 is delivered to the secretary of the corporation,
who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this Section 12.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant
to clause (c) of paragraph (A)(l) of this Section 12, the
stockholder must have given timely notice thereof in writing
to the secretary of the corporation and any such proposed
business other than the nominations of persons for election
to the board of directors must constitute a proper matter
for stockholder action. To
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be timely, a stockholder's notice shall be delivered to
the secretary at the principal executive offices of the
corporation not later than the close of business on the
ninetieth (90th) day, nor earlier than the close of
business on the one hundred twentieth (120th) day, prior to
the first anniversary of the preceding
year's annual meeting (provided, however, that in the event
that the date of the annual meeting is more than thirty (30)
days before or more than seventy (70) days after such
anniversary date, notice by the stockholder must be so
delivered not earlier than the close of business on the one
hundred twentieth (120th) day prior to such annual meeting
and not later than the close of business on the later of the
ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public
announcement of the date of such meeting is first made by
the corporation). In no event shall the public announcement
of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for
the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) all information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to and in
accordance with Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and (ii) such
person's written consent to being named in the proxy
statement as a nominee and to serving as a director if
elected; (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that
such business includes a proposal to amend the bylaws of the
corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal
is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination
or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books, and
of such beneficial owner, (ii) the class and number of
shares of capital stock of the corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business or nomination, and (iv) a representation whether
the stockholder or the beneficial owner, if any, intends or
is part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the
percentage of the corporation's outstanding capital stock
required to approve or adopt the proposal or elect the
nominee and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination. The
foregoing notice requirements of this Section 12 shall be
deemed satisfied by a stockholder if the stockholder has
notified the corporation of his, her or its intention to
present a proposal or nomination at an annual meeting in
compliance with applicable rules and regulations promulgated
under the Exchange Act and such stockholder's proposal or
nomination has been included in a proxy statement that has
been prepared by the corporation to solicit proxies for such
annual meeting. The corporation may require any proposed
nominee to furnish such other information as it may
reasonably required to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
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(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 12 to the contrary, in the
event that the number of directors to be elected to the
board of directors of the corporation at an annual meeting
is increased and there is no public announcement by the
corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 12 shall also
be considered timely, but only with respect to nominees for
the additional directorships, if it shall be delivered to
the secretary at the principal executive offices of the
corporation not later than the close of business on the
tenth (10th) day following the day on which such public
announcement is first made by the corporation.
(B) Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the
meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of directors may
be made at a special meeting of stockholders at which directors
are to be elected pursuant to the corporation's notice of meeting
(1) by or at the direction of the board of directors or any
committee thereof or (2) provided that the board of directors has
determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record
at the time the notice provided for in this Section 12 is
delivered to the secretary of the corporation, who is entitled to
vote at the meeting and upon such election and who complies with
the notice procedures set forth in this Section 12. In the event
the corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of
directors, any such stockholder entitled to vote in such election
of directors may nominate a person or persons (as the case may
be) for election to such position(s) as specified in the
corporation's notice of meeting, if the stockholder's notice
required by paragraph (A)(2) of this Section 12 shall be
delivered to the secretary at the principal executive offices of
the corporation not earlier than the close of business on the one
hundred twentieth (120th) day prior to such special meeting and
not later than the close of business on the later of the
ninetieth (90th) day prior to such special meeting or the tenth
(10th) day following the day on which public announcement is
first made of the date of the special meeting and of the nominees
proposed by the board of directors to be elected at such meeting.
In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a stockholder's notice
as described above.
(C)
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 12 shall be
eligible to be elected at an annual or special meeting of
stockholders of the corporation to serve as directors and
only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section
12. Except as otherwise provided by law, the chairman of
the meeting shall have the power and duty (a) to determine
whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section
12 (including whether the stockholder or beneficial owner,
if any, on whose behalf the
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nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case
may be, proxies in support of such stockholder's nominee
or proposal in compliance with such stockholder's
representation as required by clause (A)(2)(c)(iv)
of this Section 12) and (b) if any proposed
nomination or business was not made or proposed in
compliance with this Section 12, to declare that such
nomination shall be disregarded or that such proposed
business shall not be transacted. Notwithstanding the
foregoing provisions of this Section 12, unless otherwise
required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the corporation
to present a nomination or proposed business, such
nomination shall be disregarded and such proposed business
shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the
corporation. For purposes of this Section 12, to be
considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner
of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as
proxy at the meeting of stockholders and such person must
produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) For purposes of this Section 12, "public
announcement" shall include disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 12, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this Section 12. Nothing in this Section 12 shall
be deemed to affect any rights (a) of stockholders to
request inclusion of proposals or nominations in the
corporation's proxy statement pursuant to applicable rules
and regulations promulgated under the Exchange Act or (b) of
the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the
certificate of incorporation.
DIRECTORS
13. The number of directors of the corporation
constituting the full board of directors shall be no less than
three (3) and no more than fifteen (15), the exact number to be
determined by the board of directors from time to time. Within
the foregoing limits, between elections by stockholders the board
of directors may change the number of directors constituting the
full board of directors. Directors need not be stockholders of
the corporation. Each director, including a director elected to
fill a vacancy, shall hold office until his successor has been
duly elected and qualified unless he sooner shall have resigned
or been removed from office.
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14. The board of directors may hold their meetings and
keep the books of the corporation, except the original or
duplicate stock ledger, outside of Delaware, at the office of the
corporation in Merriam, Kansas, or at such other places as they
may from time to time determine.
15. A vacancy or newly created directorship, as the
case may be, shall be deemed to exist in the board of directors
in case of the death, resignation, disqualification, or removal
of any director, or if the authorized number of directors is
increased, or if the stockholders fail at any meeting of
stockholders at which directors are to be elected to elect the
full authorized number of directors to be elected at that meeting.
Vacancies and newly created directorships in the board of
directors may be filled by a majority of the remaining directors,
though fewer than a quorum, or by a sole remaining director.
Upon the resignation of one or more directors from the board of
directors to be effective at a future date, a majority of the
directors then in office, including those who have so resigned,
shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations
become effective. No reduction of the authorized number of
directors shall have the effect of removing any director prior
to the expiration of his or her term of office; provided however,
that such director, or the entire board of directors, may be
removed from office, with or without cause, by the holders of a
majority in voting power of shares then entitled to vote at an
election of directors.
16. The property and business of the corporation shall
be managed by or under the direction of its board of directors
which may exercise all such powers of the corporation and do all
such lawful acts and things as are not by statute or by the
certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
COMMITTEES OF DIRECTORS
17. The board of directors may, by vote of a majority
of their entire number, elect from their own number an executive
committee of not less than three (3) nor more than five (5)
members, which committee may be vested with the management of the
current and ordinary business of the corporation, including the
declaration of dividends, the fixing and altering of the powers
and duties of the several officers and agents of the corporation,
the election of additional officers and agents, and the filling
of vacancies other than in the board of directors, and with power
to authorize purchases, sales, contracts, offers, conveyances,
transfers and negotiable instruments to the fullest extent
permitted by law. A majority of the executive committee shall
constitute a quorum for the transaction of business but a lesser
number may adjourn any meeting from time to time, and the meeting
may be held as adjourned without further notice. The executive
committee may make rules not inconsistent herewith for the
holding and conduct of its meetings.
18. The board of directors may, by resolution or
resolutions passed by a majority of the whole board of directors,
designate other committees, each committee to consist of two (2)
or more of the directors of the corporation, which to the extent
provided in said resolution or resolutions, shall have and may
exercise the powers of the board of directors in the management
of the business and affairs of the corporation, and may have
power to authorize the seal of the corporation to be affixed to
all papers which may require it. Such committee or committees
shall
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have such name or names as may be determined from time to time by
resolution adopted by the board of directors.
19. All committees shall keep their regular minutes of
their proceedings and report the same to the board of directors,
who shall have power to rescind any vote or resolution passed by
any committee but no such rescission shall have retroactive
effect.
COMPENSATION OF DIRECTORS
20. Directors, as such, shall not receive any stated
salary for their services, but, by resolution of the board of
directors a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of the
board of directors; provided that nothing herein contained
shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation
therefor.
21. Members of executive or other committees may be
allowed like compensation for attending committee meetings.
MEETINGS OF THE BOARD OF DIRECTORS
22. The first meeting of each newly elected board of
directors shall be held at such time and place either within or
without the State of Delaware as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting provided a quorum shall
be present, or they may meet at such place and time as shall be
fixed by the consent in writing of all the directors.
23. Regular meetings of the board of directors may be
held without notice at such time and place, if any, either within
or without the State of Delaware as shall from time to time be
determined by the board of directors. Members of the board of
directors, or any committee designated by the board of directors,
may participate in a meeting thereof by means of conference
telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this bylaw shall
constitute presence in person at such meeting.
24. Special meetings of the board of directors may be
called by the president on two (2) days' notice to each director,
either personally or by mail, telegram or by other means of
electronic communication. Special meetings shall be called by the
president or secretary in like manner and on like notice on the
written request of two (2) directors.
25. At all meetings of the board of directors, a
majority of the entire board of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation or by these bylaws.
If a quorum shall not be present at any meeting of the
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board of directors, the directors present thereat may adjourn the
meeting from time to time without notice other than announcement
at the meeting, until a quorum shall be present.
26. No notice of board of directors meeting shall be
necessary if all directors are present or waive notice of the
meeting.
WAIVER OF NOTICES
27. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of
incorporation, or of these bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto.
OFFICERS
28. The officers of the corporation shall be chosen by
the board of directors and shall be a president, a secretary
and a treasurer. Two or more offices may be held by the same
person, except that where the offices of president and secretary
are held by the same person, such person shall not hold any other
office.
29. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a president from
its members, a secretary and a treasurer, none of whom need be a
member of the board of directors.
30. The board of directors or executive committee may
appoint such other officers and agents as it shall deem necessary,
who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from
time to time by the board of directors or executive committee.
31. The board of directors shall have authority (i) to
fix the compensation, whether in the form of salary, bonus, stock
options or otherwise, of all officers and employees of the
corporation, either specifically or by formula applicable to
particular classes of officers or employees; and (ii) to
authorize officers of the corporation to fix the compensation of
officers of the corporation who are not "named executive
officers" of the corporation within the meaning of Item 402 of
Regulation S-K promulgated under the Securities Act of 1933 and
the Securities Exchange Act of 1934. The board of directors
shall have authority to appoint a compensation committee and may
delegate to such committee any or all of its authority
relating to compensation. The appointment of an officer shall
not create any employment or contract rights in that officer.
32. The officers of the corporation shall hold office
until their successors are chosen and qualify in their stead.
Any officer elected or appointed by the board of directors may be
removed at any time by the affirmative vote of a majority of the
whole board of directors. If the office of any officer becomes
vacant for any reason, the vacancy shall be filled by the board
of directors.
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THE PRESIDENT
33. The president shall be the chief executive officer
of the corporation; he shall preside at all meetings of the
stockholders and if such officer is also a director, at meetings
of directors. The president shall be, if a director, ex oficio a
member of all standing committees of the board of directors, and
shall have such powers and duties in the management of the
business of the corporation as the of directors shall prescribe,
and shall see that all orders and resolutions of the board of
directors are carried into effect.
34. The president shall execute bonds, mortgages and
other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
VICE-PRESIDENTS
35. Any vice-presidents in the order of their
seniority shall, in the absence or disability of the president,
perform the duties and exercise the powers of the president, and
shall perform such other duties as the board of directors or
executive committee shall prescribe.
APPOINTING ATTORNEYS AND AGENTS; VOTING SECURITIES OF OTHER
ENTITIES
36. Unless otherwise provided by resolution adopted by
the board of directors, the chairperson of the board of
directors, the president or any vice president may from time to
time appoint an attorney or attorneys or agent or agents of the
corporation, in the name and on behalf of the corporation, to
cast the votes which the corporation may be entitled to cast as
the holder of stock or other securities in any other corporation
or other entity, any of whose stock or other securities may be
held by the corporation, at meetings of the holders of the stock
or other securities of such other corporation or other entity,
or to consent in writing, in the name of the corporation as
such holder, to any action by such other corporation or other
entity, and may instruct the person or persons so appointed as
to the manner of casting such votes or giving such consents, and
may execute or cause to be executed in the name and on behalf of
the corporation and under its corporate seal or otherwise, all
such written proxies or other instruments as he or she may
deem necessary or proper. Any of the rights set forth in this
paragraph which may be delegated to an attorney or agent may also
be exercised directly by the chairperson of the board of
directors, the president or the vice president.
THE SECRETARY AND ASSISTANT SECRETARIES
37. The secretary shall attend all sessions of the
board of directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in a book to
be kept for that purpose and shall perform like duties for the
standing committees when required. The secretary shall give, or
cause to be given, notice of all meetings of the stockholders and
special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of
directors or president, under whose supervision he or she shall
be. The secretary shall keep in safe custody, the seal of the
corporation and, when authorized by the board of directors, affix
the
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same to any instrument requiring it and, when so affixed, it
shall be attested by his signature or by the signature of the
treasurer or an assistant secretary.
38. Any assistant secretaries in order of their seniority shall,
in the absence or disability of the secretary, perform the duties
and exercise the powers of the secretary and shall perform such
other duties as the board of directors or executive committee
shall prescribe.
THE TREASURER AND ASSISTANT TREASURERS
39. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors.
40. The treasurer shall disburse the funds of the
corporation as may be ordered by the board of directors or
executive committee, taking proper vouchers for such
disbursements, and shall render to the president and directors,
at the regular meetings of the board of directors, or whenever
they may require it, an account of all his transactions as
treasurer and of the financial condition of the corporation.
41. If required by the board of directors, the
treasurer shall give the corporation a bond (which shall be
renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death,
resignation, retirement, or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the corporation.
42. Any assistant treasurers in the order of their
seniority shall, in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer and
shall perform such other duties as the board of directors
or executive committee shall prescribe.
CERTIFICATES OF STOCK
43. The certificates of stock of the corporation shall
be certificated, numbered and entered in the books of the
corporation as they are issued unless the board of directors
determines by resolution that some or all classes of stock are to
be uncertificated. They shall exhibit the holder's name and
number of shares and shall be signed by the president and the
treasurer. If any stock certificate is signed (i) by a transfer
agent or an assistant transfer agent or (ii) by a transfer clerk
acting on behalf of the corporation and a registrar, the
signature of any such officer may be facsimile.
TRANSFERS OF STOCK
44. Upon surrender to the corporation or any transfer
agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession,
assignment or
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authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
45. The board of directors shall have power to close
the stock transfer books of the corporation for a period not
exceeding fifty (50) days preceding the date of any meeting of
stockholders or the date for payment of any dividend or the date
for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect or
for a period of not exceeding fifty (50) days in connection with
obtaining the consent of stockholders for any purpose; provided,
however, that in lieu of closing the stock transfer books as
aforesaid, the board of directors may fix in advance a date, not
exceeding fifty (50) days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or
a date in connection with obtaining such consent, as a record
date for the determination of the stockholders entitled to notice
of, and to vote at, any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital
stock, or to give such consent, and in such case such
stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to give such consent,
as the case may be, notwithstanding any transfer of any stock on
the books of the corporation after any such record date fixed as
aforesaid.
REGISTERED STOCKHOLDERS
46. The corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder
in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
LOST CERTIFICATE
47. The board of directors or executive committee may
direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the
corporation alleged to have been lost or destroyed, upon
making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the board of
directors or executive committee may, in its discretion and as
a condition precedent to the issuance thereof, require the owner
of such lost or destroyed certificate or certificates, or his,
her or its legal representative, to advertise the same in such
manner as it shall require and/or give the corporation a bond in
such sum as it may direct as indemnity against any claim that
may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
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DIVIDENDS
48. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of directors
at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of
incorporation.
49. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends
such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other
purpose as the board of directors shall think conducive to the
interest of the corporation, and the board of directors may
modify or abolish any such reserve in the manner in which it was
created.
DIRECTORS' ANNUAL STATEMENT
50. The board of directors shall present at each
annual meeting and when called for by vote of the stockholders at
any special meeting of the stockholders, a full and clear
statement of the business and condition of the corporation.
CHECKS
51. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such
other person or persons as the board of directors or executive
committee may from time to time designate.
FISCAL YEAR
52. The fiscal year shall be the calendar year,
beginning with the calendar year ending December 31, 1986.
SEAL
53. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and
the words Corporate Seal, Delaware. Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
AMENDMENTS
54. These bylaws may be amended, altered or repealed
at any regular meeting of the stockholders or at any special
meeting of the stockholders at which a quorum is present or
represented, provided notice of the proposed amendment,
alteration or repeal be contained in the notice of such special
meeting, by the affirmative vote of a majority of the stock
entitled to vote at such meeting and present or represented
thereat, or by the affirmative vote of a majority in voting
power of the board of directors at any regular meeting of the
board of directors or at any special
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meeting of the board of directors if notice of the proposed
amendment, alteration or repeal be contained in the notice of
such special meeting; provided, however, that no change
of the time or place of the meeting for the election of directors
shall be made within sixty (60) days next before the day on which
such meeting is to be held, and that in case of any change of
such time or place, notice thereof shall be given to each
stockholder in person or by letter mailed to his last known
address at least twenty (20) days before the meeting is held.
INDEMNIFICATION
55. Mandatory Indemnification of Officers and Directors.
The corporation shall indemnify and reimburse each director and
officer of the corporation, and each person who is or was serving
at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, limited
liability company, trust, enterprise or nonprofit entity, to the
fullest extent permitted by law, for and against all liabilities
and expenses imposed upon or reasonably incurred by him or her in
connection with any action, suit or proceeding in which he or she
may be involved or with which he or she may be threatened by
reason of his or her being or having been a director or officer
of the corporation or by reason of his or her being or having
been, acting upon the request of the corporation, a director,
officer, employee or agent of another corporation, partnership,
limited liability company, trust, enterprise or nonprofit entity.
The right of indemnity and reimbursement of each such person
shall continue whether or not he or she continues to be such
director or officer at the time such liabilities or expense are
imposed upon or incurred by him or her and shall include, without
being limited to, attorneys' fees, court costs, judgments and
compromise settlements. The right of reimbursement for
liabilities and expenses so imposed or incurred shall include the
right to receive such reimbursement in advance of the final
disposition of any such action, suit or proceeding upon the
corporation's receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall be
ultimately determined that he or she is not entitled to be
indemnified by the corporation pursuant to law or this paragraph.
Notwithstanding the foregoing, except as otherwise provided in
Section 57(e), the corporation shall be required to indemnify any
person in connection with the commencement of any action, suit or
proceeding (or part thereof) by such person only if the
commencement thereof was authorized in advance by the board of
directors.
The rights of indemnification and reimbursement hereby
provided shall not be exclusive of other rights to which any
director or officer may be entitled. As used in this paragraph
the terms "director" and "officer" shall include their respective
heirs, executors and administrators.
56. Discretionary Indemnification; Advancement of Expenses;
Additional Provisions.
(a) Actions By Third Parties. The corporation shall
have the right, but not the obligation, to indemnify, up to and
including the full extent set forth in this paragraph, any person
who was or is a party, or is threatened to be made a party to, or
is otherwise involved in, any pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was an
employee or agent of the corporation, or was serving at the
request of the corporation as a director, officer, partner,
member, trustee, employee or agent of another corporation,
partnership, joint
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venture, limited liability company, trust or other enterprise
(whether or not for profit) including serving as
Trustee of an employee benefit plan of the corporation or other
entity described in this subparagraph, (whether or not such
employee benefit plan is governed by ERISA), against all
liability, losses, expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action,
suit or proceeding against any such person by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that he or
she did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) Actions by or on Behalf of the Corporation. The
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he or
she is or was an employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, partner, member, trustee, employee or agent of another
corporation, partnership, joint venture, limited liability
company, trust or other enterprise or entity (whether or not for
profit) against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense
or settlement of such action or suit if he or she acted in good
faith and in a manner he or she 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 a person shall have been adjudged to
be liable to the corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnification for such expenses
which the Court of Chancery of the State of Delaware or such
other court shall deem proper.
(c) Authorization. Any indemnification under
paragraphs 56 or 57 of these bylaws (unless ordered by a court)
shall be made by the corporation only as authorized in the
specific case, upon a determination that indemnification of the
director, officer, partner, member, trustee, employee or agent is
proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs 56 or 57,
as the case may be. Such determination shall be made, with
respect to a person who is a director or officer of the
corporation at the time of such determination: (i) by a majority
vote of the directors who were not parties to such action, suit
or proceeding, even though less than a quorum; (ii) by a
committee of such directors designated by majority vote of such
directors, even though less than a quorum; (iii) if there are no
such directors, or if such directors so direct, by independent
legal counsel in written opinion; or (iv) by the stockholders.
(d) Expense Advance. Expenses (including attorneys'
fees) incurred by present or former directors or officers of the
corporation in defending any civil, criminal, administrative or
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investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount, if it shall ultimately be
determined that he or she is not entitled to be indemnified by
the corporation as authorized in these bylaws. Such expenses
(including attorneys' fees) incurred by other employees or agents
of the corporation may be so paid upon such terms and conditions,
if any, as the corporation deems appropriate.
(e) Claims by Directors and Officers. If a claim for
indemnification or advancement of expenses under Sections 56
and/or Section 57 is not paid in full within thirty (30) days
after a written claim therefor has been received by the
corporation from a person entitled to indemnification or
advancement, such person may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the corporation shall have the burden
of proving that such person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
(f) Nonexclusivity. The indemnification and
advancement of expenses provided by, or granted pursuant to,
these bylaws shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, bylaw, agreement, vote of
stockholders, disinterested directors or otherwise, both as to
action in an official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, partner, member,
trustee, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(g) Insurance. The corporation shall have the power
to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a
director, officer, partner, member, trustee, employee or agent of
another corporation, partnership, joint venture, limited
liability company, trust or other enterprise or non-profit entity
against any liability asserted against, and incurred by, him or
her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions
of these bylaws or Section 145 of the Delaware General
Corporation Law.
(h) "The Corporation." For the purposes of paragraphs
56 or 57 of these bylaws references to "the corporation" shall
include, in addition to the resulting corporation and, to the
extent that the board of directors of the resulting corporation
so decides, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or
is or was serving at the request of such constituent corporation
as director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited
liability company, trust or other enterprise or non-profit
entity, shall stand in the same position under the provisions of
these bylaws with respect to the resulting or surviving
corporation as he or she would have had with respect to such
constituent corporation if its separate existence had continued.
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(i) Other Indemnification. The corporation's
obligation, if any, to indemnify any person who was or is serving
at its request as a director, officer, partner, member, trustee,
employee or agent of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise or
non-profit entity shall be reduced by any amount such person may
collect as indemnification from such other corporation,
partnership, joint venture, limited liability company, trust or
other enterprise or non-profit entity or from insurance.
(j) Other Definitions. For purposes of paragraphs 56
or 57 of these bylaws references to "other enterprises" shall
include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director,
officer, partner, member, trustee, employee or agent of the
corporation which imposes duties on, or involves services by,
such director, officer, partner, member, trustee, employee, or
agent with respect to an employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in these bylaws.
(k) Continuation of Indemnification. The
indemnification and advancement of expenses provided by, or
granted pursuant to, these bylaws shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer, officer, partner, member,
trustee, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(l) Amendment or Repeal. Neither the amendment nor
repeal of paragraphs 56 or 57 of these bylaws nor the adoption of
any provision of the corporation's Certificate of Incorporation
inconsistent with paragraphs 56 or 57 of these bylaws shall
reduce, eliminate or adversely affect any right or protection
hereunder of any person in respect of any act or omission
occurring prior to the effectiveness of such amendment, repeal or
adoption.
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