SECOND AMENDED AND RESTATED BY-LAWS
OF
TYSON FOODS, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Tyson
Foods, Inc. (the "Corporation") shall be at the Corporation Trust Company,
100 West Tenth Street, in the City of Wilmington, County of New Castle,
State of Delaware.
Section 2. Other Offices. The Corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time
and place, 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 or in a duly executed waiver of notice thereof. The
Chairman of the Board of Directors of the Company shall act as Chairman of,
and establish the agenda and rules for, all meetings of stockholders. The
Secretary of the Company shall serve as Secretary for all meetings of
stockholders.
Section 2. Annual Meetings. The Annual Meetings of Stockholders
shall be held on such date and at such time as shall be designated from
time to time by the Board of Directors and stated in the notice of the
meeting, at which meetings the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought
before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law
or by the Certificate of Incorporation, Special Meetings of Stockholders,
for any purpose or purposes, may be called by either the Senior Chairman of
the Board of Directors, the Chairman, the Chief Executive Officer, or the
President, and shall be called by any such officer at the request in
writing of a majority of the Board of Directors or at the request in
writing of stockholders owning a majority of the stock of the Corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting. Written notice of a
Special Meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
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Section 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. 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; provided, however, that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting. 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 noticed.
Section 5. Voting. When a quorum is present at any meeting, the
affirmative vote of a majority of the votes cast shall decide any question
brought before such meeting, unless the question is one upon which by
express provision of Delaware law or of the Certificate of Incorporation a
different vote is required, in which case such express provision shall
govern and control the decision of such question. Each holder of the
Corporation's Class A Common Stock ("Class A Stock") represented at a
meeting of stockholders shall be entitled to cast one vote for each share
of Class A Stock entitled to vote thereat held by such stockholder. Each
holder of the Corporation's Class B Common Stock ("Class B Stock")
represented at a meeting of stockholders shall be entitled to cast ten
votes for each share of Class B Stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion,
or the officer of the Corporation presiding at a meeting of stockholders,
in his discretion, may require that any votes cast at such meeting shall be
cast by written ballot.
At any meeting of the Stockholders, the Senior Chairman of the Board
of Directors shall preside over a proxy committee which shall be composed
of one or more persons as deemed necessary and appropriate by the Senior
Chairman, in the exercise of his or her discretion, to facilitate the
voting of shares underlying proxies solicited from the Stockholders. At
such meetings of the Stockholders, any proxies received in the name of or
on behalf of the Stockholders shall be voted by the Senior Chairman of the
Board of Directors presiding over such proxy committee, and in the event of
the absence of such Senior Chairman, the Board of Directors, in its
discretion, may designate one or more persons to serve on such proxy
committee who shall vote any proxies received in the name of or on behalf
of the Stockholders.
Section 6. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
or permitted to be taken at any Annual or Special Meeting of Stockholders
of the Corporation, 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 the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon
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were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
Section 7. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by Section 7 of this Article II
or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 9. Stockholder Nominations for Director. Any stockholder
wishing to nominate a person to serve as a candidate for election to the
Board of Directors must submit the name of such candidate in writing to the
current Board of Directors on or before September 30 of any year.
Section 10. Business to be Conducted. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an
annual meeting, business must (a) be specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of
Directors, (b) be otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or (c) satisfy the notice
requirements set forth below in this Section 10 and otherwise be properly
brought before the meeting by a stockholder.
For business to be brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive office of
the Corporation not less than 75 days nor more than 100 days prior to the
meeting; provided, however, that in the event that less than 85 days'
notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day following the
day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A stockholder's notice to the secretary
shall set forth as to each matter the stockholder proposes to bring before
the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (c)
the class and number of shares of the Corporation which are beneficially
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owned by the stockholder, and (d) any material interest of the stockholder
in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 10. The chairman of an annual meeting
shall, if the facts warrant, determine and declare at the meeting that a
matter of business was not properly brought before the meeting in
accordance with the provisions of Section 10 of this Article II or
otherwise, and if he should so determine, he shall so declare at the
meeting that any such business not properly brought before this meeting
shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The number of
persons which shall constitute the Board of Directors of the Corporation
shall be such number as initially fixed by the Incorporator and thereafter
from time to time by resolution of the Board of Directors. Except as
provided in Section 2 of this Article, directors shall be elected by a
majority of the votes cast at Annual Meetings of Stockholders, and each
director so elected shall hold office until the next Annual Meeting and
until his successor is duly elected and qualified, or until his earlier
resignation or removal. Any director may resign at any time upon written
notice to the Corporation. Directors need not be stockholders.
Section 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, and each of the directors so chosen shall hold office until the
next Annual Meeting of Stockholders and until his successor is elected and
qualified or until his earlier resignation or removal.
Section 3. Duties and Powers. The business of the Corporation
shall be managed by or under the direction of the 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 By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the
State of Delaware. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there be one, the Chief
Executive Officer, the President, or any two directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the
date of the meeting, by telephone or telegram on twenty-four (24) hours'
notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances. The notice
need not specify the business to be transacted. In the event of an
emergency which in the judgment of the Chairman, Chief Executive Officer or
President requires immediate action, a special meeting may be convened
without notice, consisting of those directors who are immediately available
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in person or by telephone and can be joined in the meeting in person or by
conference telephone. The actions taken at such a meeting shall be valid
if at least a quorum of the directors participates either personally or by
conference telephone.
Section 5. Quorum. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these By-Laws, at all
meetings of the Board of Directors one-third of the full number of
directors shall 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. If a quorum
shall not be present at any meeting of the 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.
Section 6. Actions of Board Without a Meeting. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting, if all the
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 proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the
Board of Directors or such committee by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute presence in person at
such meeting.
Section 8. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required.
Section 9. Executive Committee. The Board of Directors shall
establish an Executive Committee of its members to consist of not less than
three directors, which group shall include the Senior Chairman of the Board
of Directors, and may authorize the delegation to any such committee of any
of the authority of the Board of Directors in the management of the
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ordinary business affairs of the Corporation. The Executive Committee
shall not, however, be authorized to amend the Certificate of Incorporation
or the By-Laws of the Corporation; to adopt an agreement of merger or
consolidation pursuant to Sections 251 and 252 of the Delaware Corporation
Law; to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, or to recommend
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution. The Executive Committee may, to the extent authorized by the
Board of Directors in a resolution providing for the issuance of shares of
stock, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of such
shares for shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation, or fix the
number of shares of any series of stock or authorize the increase or
decrease of the shares of any series. The Executive Committee may, if so
authorized by a resolution of the Board of Directors, declare dividends,
authorize the issuance of stock, and adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware Corporation Law with respect
to the Corporation's 90%-owned subsidiaries. The Executive Committee shall
serve at the pleasure of the Board of Directors and shall act only in
intervals between meetings of the Board of Directors, and shall in all
respects be subject to the control and direction of the Board of Directors.
The Executive Committee may act by a majority of its members at a meeting
or informally without a meeting, provided that all members thereof sign a
writing reflecting such informal action. Any act or authorization of any
act by the Executive Committee, within the authority delegated above, shall
be as effective for all purposes as the act or authorization of the Board
of Directors; provided that the designation of such an Executive Committee
and the delegation of authority thereto shall not operate to relieve the
Board of Directors of any responsibility imposed upon it by law.
Section 10. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
Section 11. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
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thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and
a Treasurer. The Board of Directors, in its discretion, may also choose a
Senior Chairman and Chairman of the Board of Directors (each of whom must
be a director), one or more Vice Chairmen of the Board of Directors, a
Chief Executive Officer, a Chief Operating Officer, one or more Vice
Presidents, Controller, Assistant Controllers, Assistant Secretaries,
Assistant Treasurers, and any other officers deemed to be necessary. In
addition to any powers expressly provided by these By-laws, the Senior
Chairman of the Board of Directors shall, without limitation, have all
powers of a vice chairman of a board of directors under Delaware General
Corporate Law. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or
these By-Laws. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting
held after each Annual Meeting of Stockholders shall elect the executive
officers of the Corporation, who shall be comprised of the President, the
Secretary, the Treasurer and, if there be such, the Chief Executive
Officer, the Chief Operating Officer, and any Executive or Senior Vice
Presidents. Such executive officers 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. The President of
the Corporation shall have the authority to appoint such other officers as
he may in his discretion deem necessary to carry out the business of the
Corporation, including, but not limited to, Group Vice Presidents, Vice
Presidents, Controller, Assistant Controllers, Assistant Secretaries,
Assistant Treasurers and any other officers. All officers of the
Corporation shall hold office until their successors are chosen and
qualified, or until their earlier resignation or removal. Any officer
elected by the Board of Directors may be removed at any time by the Board
of Directors. Any officer appointed by the President may be removed at any
time by the President. Any vacancy occurring in any executive office of
the Corporation shall be filled by the Board of Directors. Any vacancy
occurring in any other office of the Corporation shall be filled by the
President.
Section 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the Chief Executive
Officer, the President and Chief Operating Officer, or any Vice President,
and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in
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person or by proxy at any meeting of security holders of any company in
which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chief Executive Officer. The Chief Executive Officer
of the Corporation shall have, subject to the supervision and direction of
the Board of Directors or of the Executive Committee, if any, general
supervision of the business, property, and affairs of the Corporation and
the powers vested in him by the Board of Directors, by law or by these By-
Laws or which usually attach or pertain to such office, including, but not
limited to, the authority to sign documents on behalf of the Corporation
the effect of which shall be legally binding upon the Corporation. During
the absence or disability of the Chairman of the Board of Directors, the
Chief Executive Officer shall preside at meetings of the stockholders and
of the Board of Directors. During the absence or disability of the
President, the Chief Executive Officer shall exercise all the powers and
discharge all the duties of the President.
Section 5. President. The President shall, subject to the control
of the Board of Directors and the Chief Executive Officer, have general
supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
He shall execute all bonds, mortgages, contracts and other instruments of
the Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute
documents when so authorized by these By-Laws, the Board of Directors or
the Chief Executive Officer. In the absence or disability of the Chief
Executive Officer, the President shall preside at all meetings of the
stockholders and the Board of Directors. The President shall also perform
such other duties and may exercise such other powers as from time to time
may be assigned to him by these By-Laws, the Board of Directors or by the
Chief Executive Officer.
Section 6. Chief Operating Officer. The Chief Operating Officer
shall answer directly to the President and shall perform any and all acts
under the direction and supervision of the President as the President may
require in connection with the execution of the general business of the
Corporation.
Section 7. Vice Presidents. At the request of the President and
Chief Operating Officer or in his absence or in the event of his inability
or refusal to act (and if there be no Chief Executive Officer), the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the
President and Chief Operating Officer, and when so acting shall have all
the powers of and be subject to all the restrictions upon the President and
Chief Operating Officer.
Section 8. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
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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, the Chief Executive Officer or the President and Chief
Operating Officer, under whose supervision he shall be. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings
of the stockholders and special meetings of the Board of Directors, and if
there be no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation, and the
Secretary or any Assistant Secretary, if there be one, shall have authority
to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as
the case may be.
Section 9. Treasurer. 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. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond 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.
Section 10. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer,
the President and Chief Operating Officer, any Vice President, if there be
one, or the Secretary, and in the absence of the Secretary or in the event
of his disability or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers, if there
be any, shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors, the Chief Executive
Officer, the President and Chief Operating Officer, any Vice President, if
there be one, or the Treasurer, and in the absence of the Treasurer or in
the event of his disability or refusal to act, shall perform the duties of
the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the
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Board of Directors, an Assistant Treasurer shall give the Corporation a
bond 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.
Section 12. Other Officers. Such other officers as the Board of
Directors or President may choose shall perform such duties and have such
powers as from time to time may be assigned to them. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Senior Chairman or Chairman of the Board of
Directors, by the Chief Executive Officer, by the President and Chief
Operating Officer, or by a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the
Corporation.
Section 2. Signatures. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of Directors shall require
and/or to 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, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation only by
the person named in the certificate or by his attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall
be canceled before a new certificate shall be issued.
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Section 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled 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 may fix, in advance, a record date, which shall not be more
than sixty days nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and 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 law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at
his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Written notice
may also be given personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the 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, and may be paid in cash, in property, or in shares of the
Corporation's stock. 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 Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may
modify or abolish any such reserve.
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Section 2. Disbursements. 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 may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall
end on the Saturday nearest the 30th day of September of each year.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware." The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Indemnification Rights. Every person who was or is a
party or is threatened to be made a party to or is involved in any action,
suit, or proceedings, whether civil, criminal, administrative, or
investigative, 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, or as its
representative in a partnership, joint venture, trust, or other enterprise,
shall be indemnified and held harmless to the fullest extent legally
permissible under and pursuant to any procedure specified in the General
Corporation Law of the State of Delaware, as amended from time to time,
against all expenses, liabilities, and losses (including attorney's fees,
judgments, fines, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by him in connection therewith. Such right of
indemnification shall be a contract right that may be enforced in any
lawful manner by such person. Such right of indemnification shall not be
exclusive of any other right which such directors or officers may have or
hereafter acquire and, without limiting the generality of such statement,
they shall be entitled to their respective rights of indemnification under
any agreement, vote of stockholders, provision of law, or otherwise, as
well as their rights under this paragraph.
Section 2. Insurance. The Board of Directors may cause the
Corporation to purchase and maintain insurance on behalf of any person who
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, or as its representative in a partnership, joint venture,
trust, or other enterprise against any liability asserted against such
person and incurred in any such capacity or arising out of such status,
whether or not the Corporation would have the power to indemnify such
person.
Section 3. Advance Payment of Expenses. Expenses incurred by a
director or officer of the Corporation in defending a civil or criminal
action, suit or proceeding by reason of the fact that he is or was a
director or officer of the Corporation (or was serving at the Corporation's
request as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise)
shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized by relevant sections of the General Corporation Law of Delaware.
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ARTICLE IX
AMENDMENTS
Subject to provisions contained in the Certificate of Incorporation
pertaining to amendment of the Corporation's By-Laws, these By-Laws may be
altered, amended or repealed, in whole or in part, or new By-Laws may be
adopted by the stockholders of the Corporation. The Board of Directors by
a unanimous vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders.
APPROVED this 14th day of January, 2000.
_________________________________________
Chairman of the Board of Directors
Attest:
_______________________
Secretary
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