AMENDED AND RESTATED
CORPORATE BYLAWS
OF
PILGRIM'S PRIDE CORPORATION
(A DELAWARE CORPORATION)
* * * * *
TABLE OF CONTENTS
AMENDED AND RESTATED
CORPORATE BYLAWS OF
PILGRIM'S PRIDE CORPORATION
(a Delaware corporation)
SECTION SUBJECT MATTER PAGE
ARTICLE : NAME AND OFFICES
. Name ................................................1
. Registered Office and Agent..........................1
() Registered Office...............................1
() Registered Agent................................1
() Change of Registered Office or Agent............1
. Other Offices........................................2
ARTICLE : STOCKHOLDERS
. Place of Meetings....................................2
. Annual Meetings......................................2
. Special Meetings.....................................2
. Notice ..............................................2
. Voting List..........................................3
. Quorum 4
. Requisite Vote.......................................4
. Withdrawal of Quorum.................................5
. Voting at Meetings...................................5
() Voting Power....................................5
() Exercise of Voting Power; Proxies...............5
() Election of Directors...........................5
. Record Date..........................................6
. Action Without Meetings..............................6
. Record Date for Action Without Meeting...............7
. Preemptive Rights....................................8
ARTICLE : DIRECTORS
. Management Powers....................................8
. Number and Qualification.............................9
. Election and Term....................................9
. Voting on Directors..................................9
. Vacancies and New Directorships......................9
. Removal 10
. Meetings 10
() Place...........................................10
() Annual Meeting..................................11
() Regular Meetings................................11
() Special Meetings................................11
() Notice and Waiver of Notice.....................11
() Quorum..........................................11
() Requisite Vote..................................11
. Action Without Meetings..............................12
. Committees...........................................12
() Designation and Appointment.....................12
() Members; Alternate Members; Term................12
() Authority.......................................12
() Records.........................................12
() Change in Number................................12
() Vacancies.......................................13
() Removal.........................................13
() Meetings........................................13
() Quorum; Requisite Vote..........................13
() Compensation....................................13
() Action Without Meetings.........................13
() Responsibility..................................13
. Compensation.........................................13
. Maintenance of Records...............................14
. Interested Directors and Officers....................14
ARTICLE : NOTICES
. Method of Notice.....................................15
. Waiver 15
ARTICLE : OFFICERS AND AGENTS
. Designation..........................................16
. Election of Officers.................................16
. Qualifications.......................................16
. Term of Office.......................................16
. Authority 17
. Removal 17
. Vacancies 17
. Compensation.........................................17
. Chairman of the Board................................17
. Vice Chairman........................................18
. Chief Executive Officer..............................18
. Executive President..................................19
. Chief Operating Officer..............................19
. President 19
. Vice Presidents......................................20
. Secretary 20
. Assistant Secretaries................................21
. Treasurer 21
. Assistant Treasurers.................................22
ARTICLE : INDEMNIFICATION
. Mandatory Indemnification............................22
. Determination of Indemnification.....................23
. Advance of Expenses..................................24
. Permissive Indemnification...........................25
. Nature of Indemnification............................25
. Insurance 25
. Notice 27
ARTICLE : STOCK CERTIFICATES AND
TRANSFER REGULATIONS
. Description of Certificates..........................27
. Entitlement to Certificates..........................28
. Signatures...........................................28
. Issuance of Certificates.............................28
. Payment for Shares...................................29
() Consideration...................................29
() Valuation.......................................29
() Effect..........................................29
() Allocation of Consideration.....................29
. Subscriptions........................................29
. Record Date..........................................29
. Registered Owners....................................30
. Lost, Stolen or Destroyed Certificates...............31
() Proof of Loss...................................31
() Timely Request..................................31
() Bond............................................31
() Other Requirements..............................31
. Registration of Transfers............................31
() Endorsement.....................................31
() Guaranty and Effectiveness of Signature.........32
() Adverse Claim...................................32
() Collection of Taxes.............................32
() Additional Requirements Satisfied...............32
. Restrictions on Transfers and Legends
on Certificates......................................32
() Shares in Classes or Series.....................32
() Restriction on Transfer.........................32
() Unregistered Securities.........................33
ARTICLE : GENERAL PROVISIONS
. Dividends 33
() Declaration and Payment.........................34
() Record Date.....................................34
. Reserves 34
. Books and Records....................................34
. Annual Statement.....................................35
. Contracts and Negotiable Instruments.................35
. Fiscal Year..........................................35
. Corporate Seal.......................................36
. Resignations.........................................36
. Amendment of Bylaws..................................36
. Construction.........................................36
. Telephone Meetings...................................36
. Table of Contents; Captions..........................37
AMENDED AND RESTATED
CORPORATE BYLAWS
OF
PILGRIM'S PRIDE CORPORATION
(a Delaware Corporation)
ARTICLE
NAME AND OFFICES
. NAME. The name of the Corporation is PILGRIM'S PRIDE
CORPORATION, hereinafter referred to as the "Corporation."
. REGISTERED OFFICE AND AGENT. The Corporation shall establish,
designate and continuously maintain a registered office and agent in the
State of Delaware, subject to the following provisions:
() REGISTERED OFFICE. The Corporation shall establish and
continuously maintain in the State of Delaware a registered office
which may be, but need not be, the same as its place of business.
() REGISTERED AGENT. The Corporation shall designate and
continuously maintain in the State of Delaware a registered agent,
which agent may be either an individual resident of the State of
Delaware whose business office is identical with such registered
office, or a domestic corporation or a foreign corporation
authorized to transact business in the State of Delaware, having a
business office identical with such registered office.
() CHANGE OF REGISTERED OFFICE OR AGENT. The Corporation may
change its registered office or change its registered agent, or
both, upon the filing in the Office of the Secretary of State of
Delaware of a statement setting forth the facts required by law, and
executed for the Corporation by its Executive President, President,
a Vice President or other duly authorized officer.
. OTHER OFFICES. The Corporation may also have offices at such
other places within and without the State of Delaware as the Board of
Directors may, from time to time, determine the business of the
Corporation may require.
ARTICLE
STOCKHOLDERS
. PLACE OF MEETINGS. Each meeting of the stockholders of the
Corporation is to be held at the principal offices of the Corporation or
at such other place, either within or without the State of Delaware, as
may be specified in the notice of the meeting or in a duly executed
waiver of notice thereof.
. ANNUAL MEETINGS. The annual meeting of the stockholders for
the election of Directors and for the transaction of such other business
as may properly come before the meeting shall be held within one hundred
twenty (120) days after the close of the fiscal year of the Corporation
on a day during such period to be selected by the Board of Directors;
provided, however, that the failure to hold the annual meeting within the
designated period of time or on the designated date shall not work a
forfeiture or dissolution of the Corporation.
. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Board of Directors,
Chairman of the Board, Chief Executive Officer, Executive President or
President. The notice of a special meeting shall state the purpose or
purposes of the proposed meeting and the business to be transacted at any
such special meeting of stockholders, and shall be limited to the
purposes stated in the notice therefor.
. NOTICE. Written or printed notice of the meeting stating the
place, day and hour of the meeting, and in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the direction
of the Board of Directors, Chairman of the Board, Chief Executive
Officer, Executive President, President, or Secretary, to each
stockholder of record entitled to vote at such meeting as determined in
accordance with the provisions of Section 2.10 hereof. If mailed, such
notice shall be deemed to be delivered when deposited in the United
States Mail, with postage thereon prepaid, addressed to the stockholder
entitled thereto at his address as it appears on the stock transfer books
of the Corporation.
. VOTING LIST. The officer or agent having charge and custody of
the stock transfer books of the Corporation, shall prepare, at least ten
(10) days before each meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical
order and showing the address of each stockholder and the number of
shares having voting privileges 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 not less than ten (10) days prior to such
meeting either at the principal office of the Corporation or 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. Such list shall also be produced
and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder during the entire time of the
meeting. The original stock ledger or transfer book, or a duplicate
thereof, shall be prima facie evidence as to identity of the stockholders
entitled to examine such list or stock ledger or transfer book and to
vote at any such meeting of the stockholders. The failure to comply with
the requirements of this Section shall not affect the validity of any
action taken at said meeting.
. QUORUM. The holders of a majority of the shares of the capital
stock issued and outstanding and entitled to vote thereat, represented in
person or by proxy, shall be requisite and shall constitute a quorum at
all meetings of the stockholders for the transaction of business except
as otherwise provided by statute, the Certificate of Incorporation or
these Bylaws. If, however, such quorum shall not be present or
represented at any such meeting of the stockholders, the stockholders
entitled to vote thereat, present in person, or represented by proxy,
shall have the 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 reconvened 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. If the
adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the reconvened meeting, a
notice of said meeting shall be given to each stockholder entitled to
vote at said meeting.
. REQUISITE VOTE. If a quorum is present at any meeting, the
vote of the holders of a majority of the outstanding shares of capital
stock having voting power, present in person or represented by proxy,
shall determine any question brought before such meeting, unless the
question is one upon which, by express provision of the Certificate of
Incorporation or of these Bylaws, a different vote shall be required, in
which case such express provision shall govern and control the
determination of such question.
. WITHDRAWAL OF QUORUM. If a quorum is present at the time of
commencement of any meeting, the stockholders present at such duly
convened meeting may continue to transact any business which may properly
come before said meeting until adjournment thereof, notwithstanding the
withdrawal from such meeting of sufficient holders of the shares of
capital stock entitled to vote thereat to leave less than a quorum
remaining.
. VOTING AT MEETING. Voting at meetings of stockholders shall be
conducted and exercised subject to the following procedures and
regulations:
() VOTING POWER. In the exercise of voting power with
respect to each matter properly submitted to a vote at any meeting
of stockholders, each holder of the capital stock of the Corporation
having voting power shall be entitled to one (1) vote for each such
share held in his name on the books of the Corporation, except to
the extent otherwise specified by the Certificate of Incorporation
or Certificate of Designations pertaining to a series of preferred
stock.
() EXERCISE OF VOTING POWER; PROXIES. Each stockholder
entitled to vote at a meeting or to express consent or dissent to
corporate action in writing without a meeting may vote either in
person or authorize another person or persons to act for him by
proxy duly appointed by instrument in writing subscribed by such
stockholder or by his duly authorized attorney-in-fact; provided,
however, no such appointment of proxy shall be valid, voted or acted
upon after the expiration of three (3) years from the date of
execution of such written instrument of appointment, unless
otherwise stated therein. A proxy shall be revocable unless
expressly designated therein as irrevocable and coupled with an
interest. Proxies coupled with an interest include the appointment
as proxy of: (a) a pledgee; (b) a person who purchased or agreed to
purchase or owns or holds an option to purchase the shares voted;
(c) a creditor of the Corporation who extended its credit under
terms requiring the appointment; (d) an employee of the Corporation
whose employment contract requires the appointment; or (e) a party
to a voting agreement created under Section 218 of the General
Corporation Law of Delaware, as amended. Each proxy shall be filed
with the Secretary of the Corporation prior to or at the time of the
meeting. Any vote may be taken by voice vote or by show of hands
unless someone entitled to vote at the meeting objects, in which
case written ballots shall be used.
() ELECTION OF DIRECTORS. In all elections of Directors
cumulative voting shall be prohibited.
. RECORD DATE. As more specifically provided in Article 7,
Section 7.7 hereof, the Board of Directors may fix in advance a record
date for the purpose of determining stockholders entitled to notice of or
to vote at a meeting of stockholders, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be less than ten
(10) nor more than sixty (60) days prior to such meeting. In the absence
of any action by the Board of Directors fixing the record date, the
record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day
before the day on which notice of the meeting is given, or, if notice is
waived, at the close of business on the day before the meeting is held.
. ACTION WITHOUT MEETINGS. Any action permitted or required to
be taken at a meeting of the stockholders of the Corporation may be taken
without a meeting, without prior notice, and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be
signed by the holder or holders of the 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, and such written consent shall have the
same force and effect as the requisite vote of the stockholders thereon.
Any such executed written consent, or an executed counterpart thereof,
shall be placed in the minute book of the Corporation. Every written
consent shall bear the date of signature of each stockholder who signs
the consent. No written consent shall be effective to take the action
that is the subject of the consent unless, within sixty (60) days after
the date of the earliest dated consent delivered to the Corporation in
the manner required under Section 2.12 hereof, a consent or consents
signed by the holders of the minimum number of shares of the capital
stock issued and outstanding and entitled to vote on and approve the
action that is the subject of the consent are delivered to the
Corporation. Prompt notice of the taking of any action by stockholders
without a meeting by less than unanimous written consent shall be given
to those stockholders who did not consent in writing to the action.
. RECORD DATE FOR ACTION WITHOUT MEETINGS. Unless a record date
shall have previously been fixed or determined by the Board of Directors
as provided in Section 2.10 hereof, whenever action by stockholders is
proposed to be taken by consent in writing without a meeting of
stockholders, the Board of Directors may fix a record date for the
purpose of determining stockholders entitled to consent to that action,
which record date shall not precede, and shall not be more than ten (10)
days after, the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors and the prior action of the Board of Directors is
not required by statute or the Certificate of Incorporation, the record
date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the Corporation
having custody of the books in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the Executive President
or principal executive officer of the Corporation. If no record date
shall have been fixed by the Board of Directors and prior action of the
Board of Directors is required by statute, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts a resolution taking such prior
action.
. PREEMPTIVE RIGHTS. No holder of shares of capital stock of the
Corporation shall, as such holder, have any right to purchase or
subscribe for any capital stock of any class which the Corporation may
issue or sell, whether or not exchangeable for any capital stock of the
Corporation of any class or classes, whether issued out of unissued
shares authorized by the Certificate of Incorporation, as amended, or out
of shares of capital stock of the Corporation acquired by it after the
issue thereof; nor shall any holder of shares of capital stock of the
Corporation, as such holder, have any right to purchase, acquire or
subscribe for any securities which the Corporation may issue or sell
whether or not convertible into or exchangeable for shares of capital
stock of the Corporation of any class or classes, and whether or not any
such securities have attached or appurtenant thereto warrants, options or
other instruments which entitle the holders thereof to purchase, acquire
or subscribe for shares of capital stock of any class or classes.
ARTICLE
DIRECTORS
. MANAGEMENT POWERS. The powers of the Corporation shall be
exercised by or under the authority of, and the business and affairs of
the Corporation shall be managed 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, the Certificate of
Incorporation or these Bylaws directed or required to be exercised or
done by the stockholders.
. NUMBER AND QUALIFICATION. The Board of Directors shall consist
of not less than one (1) member. The number of Directors shall initially
be fixed by the incorporator and thereafter from time to time by the
Board of Directors. Directors need not be residents of the State of
Delaware nor stockholders of the Corporation. Each Director shall
qualify as a Director following election as such by agreeing to act or
acting in such capacity. The number of Directors shall be fixed, and may
be increased or decreased, from time to time by resolution of the Board
of Directors without the necessity of a written amendment to the Bylaws
of the Corporation; provided, however, no decrease shall have the effect
of shortening the term of any incumbent Director.
. ELECTION AND TERM. Members of the Board of Directors shall
hold office until the annual meeting of the stockholders of the
Corporation and until their successors shall have been elected and
qualified. At the annual meeting of stockholders, the stockholders
entitled to vote in an election of Directors shall elect Directors to
hold office until the next succeeding annual meeting of the stockholders.
Each Director shall hold office for the term for which he is elected, and
until his successor shall be elected and qualified or until his death,
resignation or removal, if earlier.
. VOTING ON DIRECTORS. Directors shall be elected by the vote of
the holders of a plurality of the shares entitled to vote in the election
of Directors and represented in person or by proxy at a meeting of
stockholders at which a quorum is present. Cumulative voting in the
election of Directors is expressly prohibited.
. VACANCIES AND NEW DIRECTORSHIPS. Vacancies and newly created
directorships resulting from any increase in the authorized number of
Directors elected by all the stockholders having the right to vote as a
single class may be filled by the affirmative vote of a majority of the
Directors then in office, although less than a quorum, or by a sole
remaining Director, or by the requisite vote of the stockholders at an
annual meeting of the stockholders or at a special meeting of the
stockholders called for that purpose, and the Directors so elected shall
hold office until their successors are elected and qualified. If the
holders of any class or classes of stock or series of stock of the
Corporation are entitled to elect one or more Directors by the
Certificate of Incorporation or Certificate of Designations applicable to
such class or series, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the Directors
elected by such class or classes or series thereof then in office, or by
a sole remaining Director so elected, and the Directors so elected shall
hold office until the next election of the class for which such Directors
shall have been chosen, and until their successors shall be elected and
qualified. For purposes of these Bylaws, a "vacancy" shall be defined as
an unfilled directorship arising by virtue of the death, resignation or
removal of a Director theretofore duly elected to serve in such capacity
in accordance with the relevant provisions of these Bylaws.
. REMOVAL. Any Director may be removed either for or without
cause at any duly convened special or annual meeting of stockholders, by
the affirmative vote of a majority in number of shares of the
stockholders present in person or by proxy at any meeting and entitled to
vote for the election of such Director, provided notice of intention to
act upon such matter shall have been given in the notice calling such
meeting.
. MEETINGS. The meetings of the Board of Directors shall be held
and conducted subject to the following regulations:
() PLACE. Meetings of the Board of Directors of the
Corporation, annual, regular or special, are to be held at the
principal office or place of business of the Corporation, or such
other place, either within or without the State of Delaware, as may
be specified in the respective notices, or waivers of notice,
thereof.
() ANNUAL MEETING. The Board of Directors shall meet each
year immediately after the annual meeting of the stockholders, at
the place where such meeting of the stockholders has been held
(either within or without the State of Delaware), for the purpose of
organization, election of officers, and consideration of any other
business that may properly be brought before the meeting. No notice
of any kind to either old or new members of the Board of Directors
for such annual meeting shall be required.
() REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and at such place
or places as shall from time to time be determined and designated by
the Board.
() SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, Chief
Executive Officer, Executive President or President of the
Corporation on notice of two (2) days to each Director either
personally or by mail or by telegram, telex or facsimile
transmission and delivery. Special meetings of the Board of
Directors shall be called by the Chairman of the Board, Executive
President or Secretary in like manner and on like notice on the
written request of two (2) Directors.
() NOTICE AND WAIVER OF NOTICE. Attendance of a Director at
any meeting shall constitute a waiver of notice of such meeting,
except where a Director attends for the express purpose of objecting
to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any regular meeting of the Board of
Directors need be specified in the notice or waiver of notice of
such meeting.
() QUORUM. At all meetings of the Board of Directors, a
majority of the number of Directors shall constitute a quorum for
the transaction of business, unless a greater number is required by
law or by the Certificate of Incorporation. If a quorum shall not
be present at any meeting 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.
() REQUISITE VOTE. The act of a majority of the Directors
present at any meeting at which a quorum is present shall be the act
of the Board of Directors unless the act of a greater number is
required by statute, the Certificate of Incorporation or these
Bylaws.
. ACTION WITHOUT MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or
permitted by law to be taken at any meeting of the Board of Directors, or
any committee thereof, may be taken without a meeting, if prior to such
action a written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed
in the minutes or proceedings of the Board of Directors or committee.
. COMMITTEES. Committees designated and appointed by the Board
of Directors shall function subject to and in accordance with the
following regulations and procedures:
() DESIGNATION AND APPOINTMENT. The Board of Directors may,
by resolution adopted by a majority of the entire Board, designate
and appoint one or more committees under such name or names and for
such purpose or function as may be deemed appropriate.
() MEMBERS; ALTERNATE MEMBERS; TERMS. Each committee thus
designated and appointed shall consist of one or more of the
Directors of the Corporation, one of whom, in the case of the
Executive Committee, shall be the Chief Executive Officer of the
Company. The Board of Directors may designate one or more of its
members as alternate members of any committee, who may, subject to
any limitations imposed by the entire Board, replace absent or
disqualified members at any meeting of that committee. The members
or alternate members of any such committee shall serve at the
pleasure of and subject to the discretion of the Board of Directors.
() AUTHORITY. Each committee, to the extent provided in the
resolution of the Board creating same, shall have and may exercise
such of the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation as the
Board of Directors may direct and delegate, except, however, those
matters which are required by statute to be reserved unto or acted
upon by the entire Board of Directors.
() RECORDS. Each such committee shall keep and maintain
regular records or minutes of its meetings and report the same to
the Board of Directors when required.
() CHANGE IN NUMBER. The number of members or alternate
members of any committee appointed by the Board of Directors, as
herein provided, may be increased or decreased (but not below two)
from time to time by appropriate resolution adopted by a majority of
the entire Board of Directors.
() VACANCIES. Vacancies in the membership of any committee
designated and appointed hereunder shall be filled by the Board of
Directors, at a regular or special meeting of the Board of
Directors, in a manner consistent with the provisions of this
Section 3.9.
() REMOVAL. Any member or alternate member of any committee
appointed hereunder may be removed by the Board of Directors by the
affirmative vote of a majority of the entire Board, whenever in its
judgment the best interests of the Corporation will be served
thereby.
() MEETINGS. The time, place and notice (if any) of
committee meetings shall be determined by the members of such
committee.
() QUORUM; REQUISITE VOTE. At meetings of any committee
appointed hereunder, a majority of the number of members designated
by the Board of Directors shall constitute a quorum for the
transaction of business. The act of a majority of the members and
alternate members of the committee present at any meeting at which a
quorum is present shall be the act of such committee, except as
otherwise specifically provided by statute, the Certificate of
Incorporation or these Bylaws. If a quorum is not present at a
meeting of such committee, the members of such committee present may
adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is present.
() COMPENSATION. Appropriate compensation for members and
alternate members of any committee appointed pursuant to the
authority hereof may be authorized by the action of a majority of
the entire Board of Directors pursuant to the provisions of Section
3.10 hereof.
() ACTION WITHOUT MEETINGS. Any action required or permitted
to be taken at a meeting of any committee may be taken without a
meeting if a consent in writing, setting forth the action so taken,
is signed by all members of such committee. Such consent shall have
the same force and effect as a unanimous vote at a meeting. The
signed consent, or a signed copy, shall become a part of the record
of such committee.
() RESPONSIBILITY. Notwithstanding any provision to the
contrary herein, the designation and appointment of a committee and
the delegation of authority to it shall not operate to relieve the
Board of Directors, or any member thereof, of any responsibility
imposed upon it or him by law.
. COMPENSATION. By appropriate resolution of the Board of
Directors, the Directors may be reimbursed their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a
fixed sum (as determined from time to time by the vote of a majority of
the Directors then in office) for attendance at each meeting of the Board
of Directors or a stated salary as Director, or both. No such payment
shall preclude any Director from serving the Corporation in another
capacity and receiving compensation therefor. Members of special or
standing committees may, by appropriate resolution of the Board of
Directors, be allowed similar reimbursement of expenses and compensation
for attending committee meetings.
. MAINTENANCE OF RECORDS. The Directors may keep the books and
records of the Corporation, except such as are required by law to be kept
within the State, outside the State of Delaware or at such place or
places as they may, from time to time, determine.
. INTERESTED DIRECTORS AND OFFICERS. No contract or other
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any firm of which one or more of
its Directors or officers are members or employees, or in which they are
interested, or between the Corporation and any corporation or association
of which one or more of its Directors or officers are stockholders,
members, directors, officers, or employees, or in which they are
interested, shall be void or voidable solely for this reason, or solely
because of the presence of such Director or Directors or officer or
officers at the meeting of the Board of Directors of the Corporation,
which acts upon, or in reference to, such contract, or transaction, if
(a) the material facts of such relationship or interest shall be
disclosed or known to the Board of Directors and the Board of Directors
shall, nevertheless in good faith, authorize, approve and ratify such
contract or transaction by a vote of a majority of the Directors present,
such interested Director or Directors to be counted in determining
whether a quorum is present, but not to be counted in calculating the
majority of such quorum necessary to carry such vote; (b) the material
facts of such relationship or interest 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
the vote of the stockholders; or (c) the contract or transaction is fair
to the Corporation as of the time it is authorized, approved or ratified
by the Board of Directors, a committee thereof or the stockholders. The
provisions of this Section shall not be construed to invalidate any
contract or other transaction which would otherwise be valid under the
common and statutory law applicable thereto.
ARTICLE
NOTICES
. METHOD OF NOTICE. Whenever under the provisions of the General
Corporation Law of Delaware or of the Certificate of Incorporation or of
these Bylaws, notice is required to be given to any Director or
stockholder, it shall not be construed to mean personal notice, but such
notice may be given in writing and delivered personally, through the
United States mail, by a recognized delivery service (such as Federal
Express) or by means of telegram, telex or facsimile transmission,
addressed to such Director or stockholder, at his address or telex or
facsimile transmission number, as the case may be, as it appears on the
records of the Corporation, with postage and fees thereon prepaid. Such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States Mail or with an express delivery service
or when transmitted by telex or facsimile transmission or personally
delivered, as the case may be.
. WAIVER. Whenever any notice whatever is required to be given
under the provisions of the General Corporation Law of Delaware or under
the provisions of the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice. Attendance by such
person or persons, whether in person or by proxy, at any meeting
requiring notice shall constitute a waiver of notice of such meeting,
except where such person attends the meeting for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE
OFFICERS AND AGENTS
. DESIGNATION. The officers of the Corporation shall be chosen
by the Board of Directors and shall consist of the offices of:
() Chairman of the Board, Chief Executive Officer, Executive
President, President, Vice President, Treasurer and Secretary; and
() Such other offices and officers (including one or more
additional Vice Presidents) and assistant officers and agents as the
Board of Directors shall deem necessary.
. ELECTION OF OFFICERS. Each officer designated in Section
5.1(a) hereof shall be elected by the Board of Directors on the
expiration of the term of office of such officer, as herein provided, or
whenever a vacancy exists in such office. Each officer or agent
designated in Section 5.1(b) above may be elected by the Board of
Directors at any meeting.
. QUALIFICATIONS. No officer or agent need be a stockholder of
the Corporation or a resident of Delaware. No officer or agent is
required to be a Director, except the Chairman of the Board. Any two or
more offices may be held by the same person.
. TERM OF OFFICE. Unless otherwise specified by the Board of
Directors at the time of election or appointment, or by the express
provisions of an employment contract approved by the Board, the term of
office of each officer and each agent shall expire on the date of the
first meeting of the Board of Directors next following the annual meeting
of stockholders each year. Each such officer or agent, unless elected or
appointed to an additional term, shall serve until the expiration of the
term of his office or, if earlier, his death, resignation or removal.
. AUTHORITY. Officers and agents shall have such authority and
perform such duties in the management of the Corporation as are provided
in these Bylaws or as may be determined by resolution of the Board of
Directors not inconsistent with these Bylaws.
. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed with or without cause by the Board of
Directors whenever in its judgment the best interests of the Corporation
will be served thereby. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract
rights.
. VACANCIES. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal or otherwise) shall be filled
by the Board of Directors.
. COMPENSATION. The compensation of all officers and agents of
the Corporation shall be fixed from time to time by the Board of
Directors.
. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
chosen from among the Directors. The Chairman of the Board shall have
the power to call special meetings of the stockholders and of the
Directors for any purpose or purposes, and he shall preside at all
meetings of the Board of Directors, unless he shall be absent or unless
he shall, at his election, designate the Vice Chairman, if one is
elected, to preside in his stead. The Chairman of the Board shall advise
and counsel the Chief Executive Officer and other officers of the
Corporation and shall exercise such powers and perform such duties as
shall be assigned to or required by him from time to time by the Board of
Directors.
. VICE CHAIRMAN. The Vice Chairman, if one is elected, shall
have the power to call special meetings of the stockholders and of the
Directors for any purpose or purposes, and, in the absence of the
Chairman of the Board, the Vice Chairman shall preside at all meetings of
the Board of Directors unless he shall be absent. The Vice Chairman
shall advise and counsel the other officers of the Corporation and shall
exercise such powers and perform such duties as shall be assigned to or
required of him from time to time by the Board of Directors.
. CHIEF EXECUTIVE OFFICER. Subject to the supervision of the
Board of Directors, the Chief Executive Officer shall have general
supervision, management, direction and control of the business and
affairs of the Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. The Chief Executive
Officer 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 executed and except where the execution
thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation. The Chief Executive Officer
shall preside at all meetings of the stockholders and, in the absence of
the Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall be ex officio a
member of the Executive Committee, if any, of the Board of Directors.
The Chief Executive Officer shall have the general powers and duties of
management usually vested in the office of chief executive officer of a
corporation and shall perform such other duties and possess such other
authority and powers as the Board of Directors may from time to time
prescribe.
. EXECUTIVE PRESIDENT. In the absence or disability of the Chief
Executive Officer, the Executive President shall perform all of the
duties of the Chief Executive Officer and when so acting shall have all
the powers and be subject to all the restrictions upon the Chief
Executive Officer, including the power to sign all instruments and to
take all actions which the Chief Executive Officer is authorized to
perform by the Board of Directors or the Bylaws. The Executive President
shall have the general powers and duties usually vested in the office of
president of a corporation and shall perform such other duties and
possess such other authority and powers as the Board of Directors may
from time to time prescribe or as the Chief Executive Officer may from
time to time delegate. In the event no individual is elected to the
office of Chief Operating Officer, the Executive President shall have the
powers and perform the duties of the Chief Operating Officer.
. CHIEF OPERATING OFFICER. Subject to the supervision of the
Executive President, the Chief Operating Officer, if one is elected,
shall have general supervision of the day to day operations of the
Corporation. The Chief Operating Officer shall be ex officio a member of
the Executive Committee, if any, of the Board of Directors. The Chief
Operating Officer shall have the general powers and duties of management
usually vested in the office of chief operating officer of a corporation
and shall perform such other duties and possess such other authority and
powers as the Board of Directors may from time to time prescribe.
. PRESIDENT. In the absence or disability of the Executive
President, the President shall perform all of the duties of the Executive
President and when so acting shall have all the powers and be subject to
all the restrictions upon the Executive President, including the power to
sign all instruments and to take all actions which the Executive
President is authorized to perform by the Board of Directors or the
Bylaws. The President shall have the general powers and duties vested in
the office of President as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer may from time to time
delegate.
. VICE PRESIDENTS. The Vice President, or if there shall be more
than one, the Vice Presidents in the order determined by the requisite
vote of the Board of Directors, shall, in the prolonged absence or
disability of the President, perform the duties and exercise the powers
of the President and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe or as
the Chief Executive Officer may from time to time delegate. The Board of
Directors may designate one or more Vice Presidents as Executive Vice
Presidents or Senior Vice Presidents.
. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders of the
Corporation and record all proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be maintained 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, Chairman of the Board, Chief Executive Officer, Executive
President or President. The Secretary shall have custody of the
corporate seal of the Corporation, and he, or an Assistant Secretary,
shall have authority to affix the same to any instrument requiring it and
when so affixed, it may be attested by his signature or by the signature
of 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.
. ASSISTANT SECRETARIES. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the
Board of Directors, 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 and have such other powers as the Board of
Directors may from time to time prescribe or as the Chief Executive
Officer may from time to time delegate.
. TREASURER. The Treasurer shall be the chief financial officer
of the Corporation and 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 Chief Executive Officer (and
Chairman of the Board, if one is elected) 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 owned by the Corporation. The Treasurer shall perform such other
duties and have such other authority and powers as the Board of Directors
may from time to time prescribe or as the Chief Executive Officer may
from time to time delegate.
. ASSISTANT TREASURERS. The Assistant Treasurer, or, if there
shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors, 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 and have such other powers as the
Board of Directors may from time to time prescribe or as the Chief
Executive Officer may from time to time delegate.
ARTICLE
INDEMNIFICATION
. MANDATORY INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party, or who was or is a witness
without being named a party, to any threatened, pending or completed
action, claim, suit or proceeding, whether civil, criminal,
administrative or investigative, any appeal in such an action, suit or
proceeding, and any inquiry or investigation that could lead to such an
action, suit or proceeding (a "Proceeding"), by reason of the fact that
such individual is or was a Director or officer of the Corporation, or
while a Director or officer of the Corporation is or was serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
corporation, partnership, trust, employee benefit plan or other
enterprise, shall be indemnified and held harmless by the Corporation
from and against any judgments, penalties (including excise taxes),
fines, amounts paid in settlement and reasonable expenses (including
court costs and attorneys' fees) actually incurred by such person in
connection with such Proceeding if it is determined that he acted in good
faith and reasonably believed (i) in the case of conduct in his official
capacity on behalf of the Corporation that his conduct was in the
Corporation's best interests, (ii) in all other cases, that his conduct
was not opposed to the best interests of the Corporation, and (iii) with
respect to any Proceeding which is a criminal action, that he had no
reasonable cause to believe his conduct was unlawful; provided, however,
that in the event a determination is made that such person is liable to
the Corporation or is found liable on the basis that personal benefit was
improperly received by such person, the indemnification is limited to
reasonable expenses actually incurred by such person in connection with
the Proceeding and shall not be made in respect of any Proceeding in
which such person shall have been found liable for willful or intentional
misconduct in the performance of his duty to the Corporation. The
termination of any Proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself be determinative of whether the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
Proceeding which is a criminal action, had reasonable cause to believe
that his conduct was unlawful. A person shall be deemed to have been
found liable in respect of any claim, issue or matter only after the
person shall have been so adjudged by a court of competent jurisdiction
after exhaustion of all appeals therefrom.
. DETERMINATION OF INDEMNIFICATION. Any indemnification under
the foregoing Section 6.1 (unless ordered by a court of competent
jurisdiction) shall be made by the Corporation only upon a determination
that indemnification of such person is proper in the circumstances by
virtue of the fact that it shall have been determined that such person
has met the applicable standard of conduct. Such determination shall be
made (1) by a majority vote of a quorum consisting of Directors who at
the time of the vote are not named defendants or respondents in the
Proceeding; (2) if such quorum cannot be obtained, by a majority vote of
a committee of the Board of Directors, designated to act in the matter by
a majority of all Directors, consisting of two or more Directors who at
the time of the vote are not named defendants or respondents in the
Proceeding; (3) by special legal counsel (in a written opinion) selected
by the Board of Directors or a committee of the Board by a vote as set
forth in Subsection (1) or (2) of this Section, or, if such quorum cannot
be established, by a majority vote of all Directors (in which Directors
who are named defendants or respondents in the Proceeding may
participate); or (4) by the stockholders of the Corporation in a vote
that excludes the shares held by Directors who are named defendants or
respondents in the Proceeding.
. ADVANCE OF EXPENSES. Reasonable expenses, including court
costs and attorneys' fees, incurred by a person who was or is a witness
or who was or is named as a defendant or respondent in a Proceeding, by
reason of the fact that such individual is or was a Director or officer
of the Corporation, or while a Director or officer of the Corporation is
or was serving at the request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another corporation, partnership, trust, employee benefit
plan or other enterprise, shall be paid by the Corporation at reasonable
intervals in advance of the final disposition of such Proceeding, and
without the determination set forth in Section 6.2, upon receipt by the
Corporation of a written affirmation by such person of his good faith
belief that he has met the standard of conduct necessary for
indemnification under this Article 6, and a written undertaking by or on
behalf of such person to repay the amount paid or reimbursed by the
Corporation if it is ultimately determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article 6. Such
written undertaking shall be an unlimited obligation of such person and
it may be accepted without reference to financial ability to make
repayment.
. PERMISSIVE INDEMNIFICATION. The Board of Directors of the
Corporation may authorize the Corporation to indemnify employees or
agents of the Corporation, and to advance the reasonable expenses of such
persons, to the same extent, following the same determinations and upon
the same conditions as are required for the indemnification of and
advancement of expenses to Directors and officers of the Corporation.
. NATURE OF INDEMNIFICATION. The indemnification and advancement
of expenses provided hereunder shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under the
Certificate of Incorporation, these Bylaws, any agreement, vote of
stockholders or disinterested Directors or otherwise, both as to actions
taken in an official capacity and as to actions taken in any other
capacity while holding such office, shall continue as to a person who has
ceased to be a Director, officer, employee or agent of the Corporation
and shall inure to the benefit of the heirs, executors and administrators
of such person.
. INSURANCE. The Corporation shall have the power and authority
to purchase and maintain insurance or another arrangement on behalf of
any person who is or was a Director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation
as a director, officer, partner, venturer, proprietor, trustee, employee,
agent, or similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit
plan or other enterprise, against any liability, claim, damage, loss or
risk asserted against such person and incurred by such person in any such
capacity or arising out of the status of such person as such,
irrespective of whether the Corporation would have the power to indemnify
and hold such person harmless against such liability under the provisions
hereof. If the insurance or other arrangement is with a person or entity
that is not regularly engaged in the business of providing insurance
coverage, the insurance or arrangement may provide for payment of a
liability with respect to which the Corporation would not have the power
to indemnify the person only if including coverage for the additional
liability has been approved by the stockholders of the Corporation.
Without limiting the power of the Corporation to procure or maintain any
kind of insurance or other arrangement, the Corporation may, for the
benefit of persons indemnified by the Corporation, (1) create a trust
fund; (2) establish any form of self-insurance; (3) secure its indemnity
obligation by grant of a security interest or other lien on the assets of
the Corporation; or (4) establish a letter of credit, guaranty, or surety
arrangement. The insurance or other arrangement may be procured,
maintained, or established within the Corporation or with any insurer or
other person deemed appropriate by the Board of Directors regardless of
whether all or part of the stock or other securities of the insurer or
other person are owned in whole or part by the Corporation. In the
absence of fraud, the judgment of the Board of Directors as to the terms
and conditions of the insurance or other arrangement and the identity of
the insurer or other person participating in the arrangement shall be
conclusive and the insurance or arrangement shall not be voidable and
shall not subject the Directors approving the insurance or arrangement to
liability, on any ground, regardless of whether the Directors
participating in the approval is a beneficiary of the insurance or
arrangement.
. NOTICE. Any indemnification or advance of expenses to a
present or former Director or officer of the Corporation in accordance
with this Article 6 shall be reported in writing to the stockholders of
the Corporation with or before the notice or waiver of notice of the next
stockholders' meeting or with or before the next submission of a consent
to action without a meeting and, in any case, within the next twelve
month period immediately following the indemnification or advance.
ARTICLE
STOCK CERTIFICATES AND TRANSFER REGULATIONS
. DESCRIPTION OF CERTIFICATES. The shares of the capital stock
of the Corporation shall be represented by certificates in the form
approved by the Board of Directors and signed in the name of the
Corporation by the Chairman of the Board, Chief Executive Officer,
Executive President, Chief Operating Officer, President or a Vice
President and the Secretary or an Assistant Secretary of the Corporation,
and sealed with the seal of the Corporation or a facsimile thereof. Each
certificate shall state on the face thereof the name of the holder, the
number and class of shares, the par value of shares covered thereby or a
statement that such shares are without par value, and such other matters
as are required by law. At such time as the Corporation may be
authorized to issue shares of more than one class, every certificate
shall set forth upon the face or back of such certificate a statement of
the designations, preferences, limitations and relative rights of the
shares of each class authorized to be issued, as required by the laws of
the State of Delaware, or may state that the Corporation will furnish a
copy of such statement without charge to the holder of such certificate
upon receipt of a written request therefor from such holder.
. ENTITLEMENT TO CERTIFICATES. Every holder of the capital stock
in the Corporation shall be entitled to have a certificate signed in the
name of the Corporation by the Chairman of the Board, Chief Executive
Officer, Executive President, Chief Operating Officer, President or a
Vice President and the Secretary or an Assistant Secretary of the
Corporation, certifying the class of capital stock and the number of
shares represented thereby as owned or held by such stockholder in the
Corporation.
. SIGNATURES. The signatures of the Chairman of the Board, Chief
Executive Officer, Executive President, Chief Operating Officer,
President, Vice President, Secretary or Assistant Secretary upon a
certificate may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been placed upon
any such certificate or certificates, shall cease to serve as such
officer or officers of the Corporation, whether because of death,
resignation, removal or otherwise, before such certificate or
certificates are issued and delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered with the same effect as though
the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures have been used thereon had not
ceased to serve as such officer or officers of the Corporation.
. ISSUANCE OF CERTIFICATES. Certificates evidencing shares of
its capital stock (both treasury and authorized but unissued) may be
issued for such consideration (not less than par value, except for
treasury shares which may be issued for such consideration) and to such
persons as the Board of Directors may determine from time to time.
Shares shall not be issued until the full amount of the consideration,
fixed as provided by law, has been paid.
. PAYMENT FOR SHARES. Consideration for the issuance of shares
shall be paid, valued and allocated as follows:
() CONSIDERATION. The consideration for the issuance of
shares shall consist of money paid, labor done (including services
actually performed for the Corporation), or property (tangible or
intangible) actually received. Neither promissory notes nor the
promise of future services shall constitute payment of consideration
for shares.
() VALUATION. In the absence of fraud in the transaction,
the determination of the Board of Directors as to the value of
consideration received shall be conclusive.
() EFFECT. When consideration, fixed as provided by law, has
been paid, the shares shall be deemed to have been issued and shall
be considered fully paid and nonassessable.
() ALLOCATION OF CONSIDERATION. The consideration received
for shares shall be allocated by the Board of Directors, in
accordance with law, between the stated capital and capital surplus
accounts.
. SUBSCRIPTIONS. Unless otherwise provided in the subscription
agreement, subscriptions of shares, whether made before or after
organization of the Corporation, shall be paid in full in such
installments and at such times as shall be determined by the Board of
Directors. Any call made by the Board of Directors for payment on
subscriptions shall be uniform as to all shares of the same class and
series. In case of default in the payment of any installment or call
when payment is due, the Corporation may proceed to collect the amount
due in the same manner as any debt due to the Corporation.
. RECORD DATE. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or redemption
by the Corporation of any of its own shares) or a share dividend, or in
order to make a determination of stockholders for any other proper
purpose, the Board of Directors may fix a record date for any such
determination of stockholders, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than sixty
(60) days, and in the case of a meeting of stockholders, not less than
ten (10) days prior to the date on which the particular action requiring
such determination of stockholders is to be taken. If no record date is
fixed for the determination of stockholders entitled to notice of or to
vote at a meeting of stockholders, or stockholders entitled to receive a
distribution (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a share
dividend, the date before the date on which notice of the meeting is
mailed or the date on which the resolution of the Board of Directors
declaring such distribution or share dividend is adopted, as the case may
be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall be applied to any adjournment thereof.
. REGISTERED OWNERS. Prior to due presentment for registration
of transfer of a certificate evidencing shares of the capital stock of
the Corporation in the manner set forth in Section 7.10 hereof, the
Corporation shall be entitled to recognize the person registered as the
owner of such shares on its books (or the books of its duly appointed
transfer agent, as the case may be) as the person exclusively entitled to
vote, to receive notices and dividends with respect to, and otherwise
exercise all rights and powers relative to such shares; and the
Corporation shall not be bound or otherwise obligated to recognize any
claim, direct or indirect, legal or equitable, to such shares by any
other person, whether or not it shall have actual, express or other
notice thereof, except as otherwise provided by the laws of Delaware.
. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation shall
issue a new certificate in place of any certificate for shares previously
issued if the registered owner of the certificate satisfies the following
conditions:
() PROOF OF LOSS. Submits proof in affidavit form
satisfactory to the Corporation that such certificate has been lost,
destroyed or wrongfully taken;
() TIMELY REQUEST. Requests the issuance of a new
certificate before the Corporation has notice that the certificate
has been acquired by a purchaser for value in good faith and without
notice of an adverse claim;
() BOND. Gives a bond in such form, and with such surety or
sureties, with fixed or open penalty, as the Corporation may direct,
to indemnify the Corporation (and its transfer agent and registrar,
if any) against any claim that may be made or otherwise asserted by
virtue of the alleged loss, destruction, or theft of such
certificate or certificates; and
() OTHER REQUIREMENTS. Satisfies any other reasonable
requirements imposed by the Corporation.
In the event a certificate has been lost, apparently destroyed or
wrongfully taken, and the registered owner of record fails to notify the
Corporation within a reasonable time after he has notice of such loss,
destruction, or wrongful taking, and the Corporation registers a transfer
(in the manner hereinbelow set forth) of the shares represented by the
certificate before receiving such notification, such prior registered
owner of record shall be precluded from making any claim against the
Corporation for the transfer required hereunder or for a new certificate.
. REGISTRATION OF TRANSFERS. Subject to the provisions hereof,
the Corporation shall register the transfer of a certificate evidencing
shares of its capital stock presented to it for transfer if:
() ENDORSEMENT. Upon surrender of the certificate to the
Corporation (or its transfer agent, as the case may be) for
transfer, the certificate (or an appended stock power) is properly
endorsed by the registered owner, or by his duly authorized legal
representative or attorney-in-fact, with proper written evidence of
the authority and appointment of such representative, if any,
accompanying the certificate;
() GUARANTY AND EFFECTIVENESS OF SIGNATURE. The signature of
such registered owner or his legal representative or attorney-in-
fact, as the case may be, has been guaranteed by a national banking
association or member of the New York Stock Exchange, and reasonable
assurance in a form satisfactory to the Corporation is given that
such endorsements are genuine and effective;
() ADVERSE CLAIMS. The Corporation has no notice of an
adverse claim or has otherwise discharged any duty to inquire into
such a claim;
() COLLECTION OF TAXES. Any applicable law (local, state or
federal) relating to the collection of taxes relative to the
transaction has been complied with; and
() ADDITIONAL REQUIREMENTS SATISFIED. Such additional
conditions and documentation as the Corporation (or its transfer
agent, as the case may be) shall reasonably require, including
without limitation thereto, the delivery with the surrender of such
stock certificate or certificates of proper evidence of succession,
assignment or other authority to obtain transfer thereof, as the
circumstances may require, and such legal opinions with reference to
the requested transfer as shall be required by the Corporation (or
its transfer agent) pursuant to the provisions of these Bylaws and
applicable law, shall have been satisfied.
. RESTRICTIONS ON TRANSFER AND LEGENDS ON CERTIFICATES.
() SHARES IN CLASSES OR SERIES. If the Corporation is
authorized to issue shares of more than one class, the certificate
shall set forth, either on the face or back of the certificate, a
full or summary statement of all of the designations, preferences,
limitations, and relative rights of the shares of each such class
and, if the Corporation is authorized to issue any preferred or
special class in series, the variations in the relative rights and
preferences of the shares of each such series so far as the same
have been fixed and determined, and the authority of the Board of
Directors to fix and determine the relative rights and preferences
of subsequent series. In lieu of providing such a statement in full
on the certificate, a statement on the face or back of the
certificate may provide that the Corporation will furnish such
information to any stockholder without charge upon written request
to the Corporation at its principal place of business or registered
office and that copies of the information are on file in the office
of the Secretary of State.
() RESTRICTION ON TRANSFER. Any restrictions imposed by the
Corporation on the sale or other disposition of its shares and on
the transfer thereof must be copied at length or in summary form on
the face, or so copied on the back and referred to on the face, of
each certificate representing shares to which the restriction
applies. The certificate may however state on the face or back that
such a restriction exists pursuant to a specified document and that
the Corporation will furnish a copy of the document to the holder of
the certificate without charge upon written request to the
Corporation at its principal place of business.
() UNREGISTERED SECURITIES. Any security of the Corporation,
including, among others, any certificate evidencing shares of the
capital stock of the Corporation or warrants to purchase shares of
capital stock of the Corporation, which is issued to any person
without registration under the Securities Act of 1933, as amended,
or the Blue Sky laws of any state, shall not be transferable until
the Corporation has been furnished with a legal opinion of counsel
with reference thereto, satisfactory in form and content to the
Corporation and its counsel, to the effect that such sale, transfer
or pledge does not involve a violation of the Securities Act of
1933, as amended, or the Blue Sky laws of any state having
jurisdiction. The certificate representing the security shall bear
substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW BUT HAVE
BEEN ACQUIRED FOR THE PRIVATE INVESTMENT OF THE HOLDER
HEREOF AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED UNTIL
EITHER (i) A REGISTRATION STATEMENT UNDER SUCH SECURITIES
ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE
CORPORATION SHALL HAVE RECEIVED AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL THAT
REGISTRATION UNDER SUCH SECURITIES ACT OR SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED OFFER, SALE OR TRANSFER.
ARTICLE
GENERAL PROVISIONS
. DIVIDENDS. Subject to the provisions of the General
Corporation Law of Delaware, as amended, and the Certificate of
Incorporation, dividends of the Corporation shall be declared and paid
pursuant to the following regulations:
() DECLARATION AND PAYMENT. Dividends on the issued and
outstanding shares of capital stock of the Corporation 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 capital stock.
Such declaration and payment shall be at the discretion of the Board
of Directors.
() RECORD DATE. The Board of Directors may fix in advance a
record date for the purpose of determining stockholders entitled to
receive payment of any dividend, such record date to be not more
than sixty (60) days prior to the payment date of such dividend, or
the Board of Directors may close the stock transfer books for such
purpose for a period of not more than sixty (60) days prior to the
payment date of such dividend. In the absence of action by the
Board of Directors, the date upon which the Board of Directors adopt
the resolution declaring such dividend shall be the record date.
. RESERVES. There may be created by resolution of the Board of
Directors out of the surplus of the Corporation such reserve or reserves
as the Board of Directors from time to time, in its discretion, think
proper to provide for contingencies, or to repair or maintain any
property of the Corporation, or for such other purposes as the Board of
Directors shall think beneficial to the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which
it was created.
. BOOKS AND RECORDS. The Corporation shall maintain correct and
complete books and records of account and shall prepare and maintain
minutes of the proceedings of its stockholders, its Board of Directors
and each committee of its Board of Directors. The Corporation shall keep
at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of original issuance of
shares issued by the Corporation and a record of each transfer of those
shares that have been presented to the Corporation for registration or
transfer. Such records shall contain the names and addresses of all past
and present stockholders and the number and class of the shares issued by
the Corporation held by each.
. ANNUAL STATEMENT. The Board of Directors shall present at or
before each annual meeting of stockholders a full and clear statement of
the business and financial condition of the Corporation, including a
reasonably detailed balance sheet and income statement under current
date.
. CONTRACTS AND NEGOTIABLE INSTRUMENTS. Except as otherwise
provided by law or these Bylaws, any contract or other instrument
relative to the business of the Corporation may be executed and delivered
in the name of the Corporation and on its behalf by the Chairman of the
Board, Chief Executive Officer, Executive President, Chief Operating
Officer or President of the Corporation. The Board of Directors may
authorize any other officer or agent of the Corporation to enter into any
contract or execute and deliver any contract in the name and on behalf of
the Corporation, and such authority may be general or confined to
specific instances as the Board of Directors may determine by resolution.
All bills, notes, checks or other instruments for the payment of money
shall be signed or countersigned by such officer, officers, agent or
agents and in such manner as are permitted by these Bylaws and/or as,
from time to time, may be prescribed by resolution of the Board of
Directors. Unless authorized to do so by these Bylaws or by the Board of
Directors, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement, or to
pledge its credit, or to render it liable pecuniarily for any purpose or
to any amount.
. FISCAL YEAR. The fiscal year of the Corporation shall end on
the Saturday closest to September 30.
. CORPORATE SEAL. The Corporation seal shall be in such form as
may be determined by the Board of Directors. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced.
. RESIGNATIONS. Any Director, officer or agent may resign his
office or position with the Corporation by delivering written notice
thereof to the Chairman of the Board, Chief Executive Officer, Executive
President, Chief Operating Officer, President or Secretary. Such
resignation shall be effective at the time specified therein, or
immediately upon delivery if no time is specified. Unless otherwise
specified therein, an acceptance of such resignation shall not be a
necessary prerequisite of its effectiveness.
. AMENDMENT OF BYLAWS. These Bylaws may be altered, amended, or
repealed and new Bylaws adopted at any meeting of the Board of Directors
or stockholders at which a quorum is present, by the affirmative vote of
a majority of the Directors or stockholders, as the case may be, present
at such meeting, provided notice of the proposed alteration, amendment,
or repeal be contained in the notice of such meeting.
. CONSTRUCTION. Whenever the context so requires herein, the
masculine shall include the feminine and neuter, and the singular shall
include the plural, and conversely. If any portion or provision of these
Bylaws shall be held invalid or inoperative, then, so far as is
reasonable and possible: (1) the remainder of these Bylaws shall be
considered valid and operative, and (2) effect shall be given to the
intent manifested by the portion or provision held invalid or
inoperative.
. TELEPHONE MEETINGS. Stockholders, Directors or members of any
committee may hold any meeting of such stockholders, Directors or
committee by means of conference telephone or similar communications
equipment which permits all persons participating in the meeting to hear
each other and actions taken at such meetings shall have the same force
and effect as if taken at a meeting at which persons were present and
voting in person. The Secretary of the Corporation shall prepare a
memorandum of the action taken at any such telephonic meeting.
. TABLE OF CONTENTS; CAPTIONS. The table of contents and
captions used in these Bylaws have been inserted for administrative
convenience only and do not constitute matter to be construed in
interpretation.
IN DUE CERTIFICATION WHEREOF, the undersigned, being the Secretary
of PILGRIM'S PRIDE CORPORATION, confirms the adoption and approval of the
foregoing Bylaws, effective as of the _______ day of December, 1996.
___________________________________
CLIFFORD E. BUTLER,
Secretary