* * * * *
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 1 NAME AND OFFICES 1
1.1 Name 1
1.2 Registered Office and Agent 1
(a) Registered Office 1
(b) Registered Agent 1
(c) Change of Registered Office or Agent 1
1.3 Other Offices 2
ARTICLE 2 STOCKHOLDERS 2
2.1 Place of Meetings 2
2.2 Annual Meetings 2
2.3 Special Meetings 2
2.4 Notice 2
2.5 Voting List 3
2.6 Quorum 4
2.7 Requisite Vote 4
2.8 Withdrawal of Quorum 5
2.9 Voting at Meeting 5
(a) Voting Power 5
(b) Exercise of Voting Power; Proxies 5
(c) Election of Directors 6
2.10 Record Date 6
2.11 Action Without Meetings 6
2.12 Record Date for Action Without Meetings 7
2.13 Preemptive Rights 8
2.14 Stockholder Proposals 8
ARTICLE 3 DIRECTORS 10
3.1 Management Powers 10
3.2 Number and Qualification 10
3.3 Election and Term 11
3.4 Voting on Directors 11
3.5 Vacancies and New Directorships 11
3.6 Removal 12
3.7 Meetings 12
(a) Place 12
(b) Annual Meeting 12
(c) Regular Meetings 12
(d) Special Meetings 13
(e) Notice and Waiver of Notice 13
(f) Quorum 13
(g) Requisite Vote 13
3.8 Action Without Meetings 13
3.9 Committees 13
(a) Designation and Appointment 14
(b) Members; Alternate Members; Terms 14
(c) Authority 14
(d) Records 14
(e) Change in Number 14
(f) Vacancies 14
(g) Removal 14
(h) Meetings 14
(i) Quorum; Requisite Vote 14
(j) Compensation 15
(k) Action Without Meetings 15
(l) Responsibility 15
3.10 Compensation 15
3.11 Maintenance of Records 15
3.12 Interested Directors and Officers 16
ARTICLE 4 NOTICES 17
4.1 Method of Notice 17
4.2 Waiver 17
ARTICLE 5 OFFICERS AND AGENTS 18
5.1 Designation 18
5.2 Election of Officers 18
5.3 Qualifications 18
5.4 Term of Office 18
5.5 Authority 19
5.6 Removal 19
5.7 Vacancies 19
5.8 Compensation 19
5.9 Chairman of the Board 19
5.10 Vice Chairman 20
5.11 Chief Executive Officer 20
5.12 Chief Financial Officer 21
5.13 Chief Operating Officer 21
5.14 President 21
5.15 Vice Presidents 22
5.16 Secretary 22
5.17 Assistant Secretaries 23
5.18 Treasurer 23
5.19 Assistant Treasurers 24
ARTICLE 6 INDEMNIFICATION 24
6.1 Mandatory Indemnification 24
6.2 Determination of Indemnification 25
6.3 Advance of Expenses 26
6.4 Permissive Indemnification 27
6.5 Nature of Indemnification 27
6.6 Insurance 27
6.7 Notice 29
ARTICLE 7 STOCK CERTIFICATES AND TRANSFER REGULATIONS 29
7.1 Description of Certificates 29
7.2 Entitlement to Certificates 30
7.3 Signatures 30
7.4 Issuance of Certificates 30
7.5 Payment for Shares 31
(a) Consideration 31
(b) Valuation 31
(c) Effect 31
(d) Allocation of Consideration 31
7.6 Subscriptions 31
7.7 Record Date 31
7.8 Registered Owners 32
7.9 Lost, Stolen or Destroyed Certificates 33
(a) Proof of Loss 33
(b) Timely Request 33
(c) Bond 33
(d) Other Requirements 33
7.10 Registration of Transfers 33
(a) Endorsement 33
(b) Guaranty and Effectiveness of Signature 34
(c) Adverse Claims 34
(d) Collection of Taxes 34
(e) Additional Requirements Satisfied 34
7.11 Restrictions on Transfer and Legends on Certificates 34
(a) Shares in Classes or Series 34
(b) Restriction on Transfer 34
(c) Unregistered Securities 35
ARTICLE 8 GENERAL PROVISIONS 35
8.1 Dividends 35
(a) Declaration and Payment 35
(b) Record Date 36
8.2 Reserves 36
8.3 Books and Records 36
8.4 Annual Statement 36
8.5 Contracts and Negotiable Instruments 37
8.6 Fiscal Year 37
8.7 Corporate Seal 37
8.8 Resignations 38
8.9 Amendment of Bylaws 38
8.10 Construction 38
8.11 Telephone Meetings 38
8.12 Table of Contents; Captions 39
(i)
AMENDED AND RESTATED
CORPORATE BYLAWS
OF
PILGRIM'S PRIDE CORPORATION
(a Delaware Corporation)
ARTICLE 1
NAME AND OFFICES
1.` NAME. The name of the Corporation is PILGRIM'S PRIDE
CORPORATION, hereinafter referred to as the "Corporation."
2.` 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:
(a) 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.
(b) 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.
(c) 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 President, a Vice President or other duly
authorized officer.
3.c 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 2
STOCKHOLDERS
1.c 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.
2.c 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.
3.c SPECIAL MEETINGS. Special meetings of the stockholders, for any
purpose or purposes, may be called by the Board of Directors, Chairman of
the Board, Vice Chairman of the Board, Chief Executive Officer 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.
4.c 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, Vice Chairman of the Board, Chief
Executive Officer, 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.
5.c 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.
6.c QUORUM. The holders of a majority of the combined voting power
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. The holders of the Class A Common Stock and
the Class B Common stock shall vote as a single class on all matters
submitted to a vote of the stockholders, with each share of Class A Common
Stock being entitled to one (1) vote and each share of Class B Common Stock
being entitled to twenty (20) votes. 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.
7.c REQUISITE VOTE. If a quorum is present at any meeting, the vote
of the holders of a majority of the total outstanding combined voting power
of Class A Common Stock and Class B Common Stock, 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.
8.c 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.
9.c VOTING AT MEETING. Voting at meetings of stockholders shall be
conducted and exercised subject to the following procedures and
regulations:
(a) 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 Class A Common 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, and each holder of the Class B Common
Stock of the Corporation having voting power shall be entitled to twenty
(20) votes 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.
(b) 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.
(c) ELECTION OF DIRECTORS. In all elections of Directors cumulative
voting shall be prohibited.
10.c 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.
11.c 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.
12.c 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 Chairman of the Board 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.
13.c 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.
14.c STOCKHOLDER PROPOSALS. At the annual meeting of stockholders of
the Corporation, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before
such annual meeting. To be properly brought before an annual meeting,
business or proposals must (i) be specified in the notice relating to the
meeting (or any supplement thereto) given by or at the direction of the
Board of Directors in accordance with these Bylaws or (ii) be properly
brought before the meeting by a stockholder of the Corporation who (A) is a
stockholder of record at the time of the giving of such stockholder's
notice provided for herein, (B) shall be entitled to vote at the annual
meeting and (C) complies with the requirements of this Section, and
otherwise be proper subjects for stockholder action and be properly
introduced at the annual meeting. For a proposal to be properly brought
before the annual meeting by a stockholder of the Corporation, in addition
to any other applicable requirements, such stockholder must have given
timely advance notice thereof in writing to the Secretary of the
Corporation. To be timely, such stockholder's notice must be delivered to,
or mailed and received at, the principal executive offices of the
Corporation not less than 120 days nor more than 270 days prior to the
scheduled annual meeting date, regardless of any postponements, deferrals
or adjournments of such annual meeting to a later date. Any such
stockholder's notice to the Secretary of the Corporation shall set forth as
to each matter such stockholder proposes to bring before the annual meeting
(i) a description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(ii) the name and address, as they appear on the Corporation's books, of
such stockholder proposing such business and any other stockholders of the
Corporation known by such stockholder to be in favor of such proposal,
(iii) the number of shares of capital stock of the Corporation owned by
such stockholder on the date of such notice and (iv) any material interest
of such stockholder in such proposal. The presiding officer of the meeting
of stockholders of the Corporation shall determine whether the requirements
of this Section have been met with respect to any stockholder proposal. If
the presiding officer determines that any stockholder proposal was not made
in accordance with the terms of this Section, he shall so declare at the
meeting and any such proposal shall not be acted upon at the meeting. At a
special meeting of stockholders of the Corporation, only such business
shall be conducted, and only such proposals shall be acted upon, as shall
have been properly brought before such special meeting. To be properly
brought before such a special meeting, business or proposals must (i) be
specified in the notice relating to the meeting (or any supplement thereto)
given by or at the direction of the Board of Directors in accordance with
these Bylaws or (ii) constitute matters incident to the conduct of the
meeting as the presiding officer of the meeting shall determine to be
appropriate. In addition to the foregoing provisions of this Section, a
stockholder of the Corporation shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in this Section.
ARTICLE 3
DIRECTORS
1.c 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.
2.c 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.
3.c 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.
4.c 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.
5.c 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.
6.c 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.
7.c MEETINGS. The meetings of the Board of Directors shall be held
and conducted subject to the following regulations:
(a) 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.
(b) 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.
(c) 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.
(d) SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman of the Board, Vice Chairman of the Board, Chief
Executive Officer 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, Vice Chairman of
the Board, Chief Executive Officer, President or Secretary in like manner
and on like notice on the written request of two (2) Directors.
(e) 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.
(f) 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.
(g) 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.
8.g 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.
9.g COMMITTEES. Committees designated and appointed by the Board of
Directors shall function subject to and in accordance with the following
regulations and procedures:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) MEETINGS. The time, place and notice (if any) of committee
meetings shall be determined by the members of such committee.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
10.l 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.
11.l 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.
12.l 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 4
NOTICES
1.l 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.
2.l 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 5
OFFICERS AND AGENTS
1.l DESIGNATION. The officers of the Corporation shall be chosen by
the Board of Directors and shall consist of the offices of:
(a) Chairman of the Board, Vice Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, Chief Operating Officer,
President, Vice President, Treasurer and Secretary; and
(b) 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.
2.b 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.
3.b 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.
4.b 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.
5.b 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.
6.b 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.
7.b VACANCIES. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal or otherwise) shall be filled
by the Board of Directors.
8.b COMPENSATION. The compensation of all officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
9.b 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
stockholders and Board of Directors, unless he shall be absent or unless he
shall, at his election, designate the Vice Chairman to preside in his
stead. The Chairman of the Board shall advise and counsel the Vice
Chairman of the Board, 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 of him from time to time by the Board of
Directors. The Chairman of the Board shall be authorized to execute
promissory notes, bonds, mortgages, leases 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.
10.b VICE CHAIRMAN. The Vice Chairman 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. 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. The Vice
Chairman shall be authorized to execute promissory notes, bonds, mortgages,
leases 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.
11.b CHIEF EXECUTIVE OFFICER. 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 be authorized to execute promissory notes, bonds, mortgages,
leases 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. In the absence of the Chairman of the Board and the Vice
Chairman, the Chief Executive Officer shall preside at all meetings of the
stockholders and 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.
12.b CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have
general financial supervision, management, direction and control of the
business and affairs of the Corporation and shall see that all financial
orders and resolutions of the Board of Directors are carried into effect.
The Chief Financial Officer shall be authorized to execute promissory
notes, bonds, mortgages, leases 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 Financial Officer shall have the
general financial powers and duties of management usually vested in the
office of the Chief Financial Officer of a corporation and shall perform
such other duties and possess such other authority and powers as the
Chairman of the Board and Board of Directors may from time to time
prescribe.
13.b CHIEF OPERATING OFFICER. The Chief Operating Officer shall have
general supervision of the day to day operations of the Corporation. 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 Chairman of the Board and Board of Directors
may from time to time prescribe.
14.b PRESIDENT. In the absence or disability of the Chief Operating
Officer, the President shall perform all of the duties of the Chief
Operating Officer and when so acting shall have all the powers and be
subject to all the restrictions upon the Chief Operating Officer, including
the power to sign all instruments and to take all actions which the Chief
Operating Officer 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.
15.b 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.
16.b 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, Vice Chairman of the Board, Chief Executive Officer, Chief Financial
Officer, Chief Operating Officer 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.
17.b 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.
18.b 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 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.
19.b 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 6
INDEMNIFICATION
1.b 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.
2.b 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.
3.b 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.
4.b 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.
5.b 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.
6.b 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.
7.b 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 7
STOCK CERTIFICATES AND TRANSFER REGULATIONS
1.b 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, Vice Chairman of the Board, President or a Vice
President or Treasurer 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.
2.b 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, Vice Chairman of the
Board, President or a Vice President or Treasurer 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.
3.b SIGNATURES. The signatures of the Chairman of the Board, Vice
Chairman of the Board, President, Vice President or Treasurer, 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.
4.b 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.
5.b PAYMENT FOR SHARES. Consideration for the issuance of shares
shall be paid, valued and allocated as follows:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
6.d 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.
7.d 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.
8.d 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.
9.d 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:
(a) PROOF OF LOSS. Submits proof in affidavit form satisfactory to
the Corporation that such certificate has been lost, destroyed or
wrongfully taken;
(b) 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;
(c) 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
(d) 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.
10.d 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:
(a) 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;
(b) 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;
(c) ADVERSE CLAIMS. The Corporation has no notice of an adverse
claim or has otherwise discharged any duty to inquire into such a claim;
(d) 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
(e) 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.
11.e RESTRICTIONS ON TRANSFER AND LEGENDS ON CERTIFICATES.
(a) 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.
(b) 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.
(c) 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 8
GENERAL PROVISIONS
1.c 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:
(a) 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.
(b) 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.
2.b 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.
3.b 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.
4.b 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.
5.b 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,
Vice Chairman of the Board, Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer and Treasurer 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.
6.b FISCAL YEAR. The fiscal year of the Corporation shall end on the
Saturday closest to September 30.
7.b 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.
8.b 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, Vice Chairman of the Board, Chief
Executive Officer, 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.
9.b 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.
10.b 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.
11.b 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.
12.b 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 14th day of May, 1999.
___________________________________________
RICHARD A. COGDILL, Secretary
BYLAWS - Page 1