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. Place of 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.
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.
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
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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 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
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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 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.
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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 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.
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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 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
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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
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. 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
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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 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
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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
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
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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 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 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
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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 cancelled before a new
certificate shall be issued.
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.
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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.
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.
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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.
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 ___ day of November, 1994.
___________________________________
Chairman of the Board of Directors
Attest:
___________________________________
Secretary
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