Effective October 6th, 1988
BYLAWS
OF
KASH N' KARRY FOOD STORES, INC.
a Delaware corporation
BYLAWS OF
KASH N' KARRY FOOD STORES, INC.
a Delaware corporation
Table of Contents
ARTICLE I Offices. . . . . . . . . . . . . . . . . . .1
ARTICLE II Meetings of Stockholders . . . . . . . . . .1
ARTICLE III Directors. . . . . . . . . . . . . . . . . .4
ARTICLE IV Officers . . . . . . . . . . . . . . . . . .7
ARTICLE V Seal . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI Form of Stock Certificate. . . . . . . . . 10
ARTICLE VII Representation of Shares of
Other Corporations . . . . . . . . . . . 10
ARTICLE VIII Transfers of Stock . . . . . . . . . . . . 10
ARTICLE IX Lost, Stolen, or Destroyed
Certificates . . . . . . . . . . . . . . 11
ARTICLE X Record Date. . . . . . . . . . . . . . . . 11
ARTICLE XI Registered Stockholders. . . . . . . . . . 12
ARTICLE XII Fiscal Year. . . . . . . . . . . . . . . . 12
ARTICLE XIII Notices. . . . . . . . . . . . . . . . . . 12
ARTICLE XIV Amendments . . . . . . . . . . . . . . . . 13
ARTICLE XV Indentification and Insurance. . . . . . . 13
BYLAWS
OF
KASH N' KARRY FOOD STORES, INC.
a Delaware corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of this
Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in
charge thereof is the agent named in the Certificate of
Incorporation until changed by the Board of Directors (the
"Board").
Section 2. Principal Office. The principal office for the
transaction of the business of the Corporation shall be at such
place as may be established by the Board. The Board is granted
full power and authority to change said principal office from one
location to another.
Section 3. Other Offices. The Corporation may also have an
office or offices at such other places, either within or without
the State of Delaware, as the Board may from time to time
designate or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders
shall be held at such time and place, within or without the State
of Delaware, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders
shall be held on such date and at such time set by the Board and
stated in the notice of the meeting, at which the stockholders
shall elect members of the Board, and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the
stockholders of the Corporation for any purpose or purposes may
be called at any time by the Board, or by a committee of the
Board that has been duly designated by the Board and whose powers
and authority, as provided in a resolution of the Board or in the
Bylaws of the Corporation, include the power to call such
meetings, and shall be called by the president or secretary at
the request in writing of a majority of the Board, or at the
request in writing of stockholders owning a majority in amount of
the entire capital stock of the Corporation issued and
outstanding and entitled to vote but such special meetings may
not be called by any other person or persons; provided, however,
that if and to the extent that any special meeting of
stockholders may be called by any other person or persons
specified in any provisions of the Certificate of Incorporation
or any amendment thereto, or any certificate filed under Section
151(g) of the Delaware General Corporation Law (or its successor
statute as in effect from time to time hereafter), then such
special meeting may also be called by the person or persons in
the manner, at the times and for the purposes so specified.
Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 4. Stockholder Lists. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at
least ten days before every meeting of stockholders, a complete
list of stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or at the place of the meeting, and the
list shall also be available at the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. Notice of Meetings. Written notice of each
meeting of stockholders, whether annual or special, stating the
place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting.
Section 6. Quorum and Adjournment. The holders of a
majority of the capital stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall
constitute a quorum for holding all meetings of stockholders,
except as otherwise provided by applicable law or by the
Certificate of Incorporation. If it shall appear that such quorum
is not present or represented at any meeting of stockholders, the
Chairman of the meeting shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The Chairman of
the meeting may determine that a quorum is present based upon any
reasonable evidence of the presence in person or by proxy of
stockholders holding a majority of the outstanding votes,
including without limitation, evidence from any record of
stockholders who have signed a register indicating their presence
at the meeting.
Section 7. Voting. In all matters, the vote of the holders
of a majority of the capital stock having voting power present in
person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by
express provision of applicable law, of the Certificate of
Incorporation, or of these Bylaws a different vote is required in
which case such express provision shall govern and control the
decision of such question. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall be entitled
to cast one vote for each share of the capital stock entitled to
vote held by such stockholder. The officer of the Corporation
presiding at a meeting of stockholders, in his or her discretion,
may require that any votes cast at such meeting shall be cast by
written ballot.
Section 8. Proxies. Each stockholder entitled to vote at a
meeting of stockholders may authorize in writing another person
or persons to act for him or her by proxy, but no proxy shall be
voted or acted upon after eleven months from its date, unless the
person executing the proxy specifies therein the period of time
for which it is to continue in force.
Section 9. Inspector of Election. The Board may appoint an
Inspector or Inspectors of Election for any meeting of
stockholders. Such Inspectors shall decide upon the qualification
of the voters and report the number of shares represented at the
meeting and entitled to vote, shall conduct the voting and accept
the votes, and when the voting is completed shall ascertain and
report the number of shares voted respectively for and against
each position upon which a vote is taken by ballot. An Inspector
need not be a stockholder, and any officer of the Corporation may
be an Inspector on any position other than a vote for or against
a proposal in which he or she shall have a material interest.
Section 10. Action Without Meeting. Subject to Section 228
of the Delaware General Corporation Law, any action which, under
any provision of the Delaware General Corporation Law, may be
taken at any annual or special meeting of such stockholders, may
be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not
less than a 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.
ARTICLE III
DIRECTORS
Section 1. Powers. The Board shall have the power to manage
or direct the management of the property, business and affairs of
the Corporation, and except as expressly limited by law, to
exercise all of its corporate powers. The Board may establish
procedures and rules, or may authorize the Chairman of any
meeting of stockholders to establish procedures and rules, for
the fair and orderly conduct of any stockholders' meeting,
including without limitation, registration of the stockholders
attending the meeting, adoption of an agenda, establishing the
order of business at the meeting, recessing and adjourning the
meeting for the purposes of tabulating any votes and receiving
the result thereof, the timing of the opening and closing of the
polls, and the physical layout of the facilities for the meeting.
Section 2. Number. The Board shall consist of one or more
members in such number as shall be determined from time to time
by resolution of the Board. Until otherwise determined by such
resolution, the Board shall consist of six members. Directors
need not be stockholders, and each director shall serve until his
or her successor is elected and qualified or until his or her
death, retirement, resignation or removal.
Section 3. Nominations. Nominations of candidates for
election as directors of the Corporation may be made by the Board
or by any stockholder entitled to vote at a meeting at which one
or more directors are to be elected (an "Election Meeting") who
complies with the notice procedures set forth in this Section 3.
Nominations made by the Board shall be made at a meeting of the
Board or by written consent of directors in lieu of a meeting,
not less than 30 days prior to the date of an Election Meeting.
At the request of the Secretary of the Corporation, each proposed
nominee shall provide the Corporation with such information
concerning him or herself as is required, under the rules of the
Securities and Exchange Commission, to be included in the
Corporation's proxy statement soliciting proxies for the election
of directors. Not less than 30 days nor more than 60 days prior
to the date of an Election Meeting, subject to any other
requirements of law, any stockholder who intends to make a
nomination at the Election Meeting shall deliver a notice to the
Secretary of the Corporation setting forth (i) the name and
address of the stockholder and of each nominee proposed in such
notice, (ii) the class, series and number of shares of capital
stock of the Corporation which are beneficially owned by the
stockholder, (iii) a representation that the stockholder intends
to nominate the persons specified in the notice at the meeting,
(iv) a description of any arrangements between the stockholder
and nominees or any other person with respect to the nomination,
(v) such other information concerning each such nominee as would
be required under the rules of the Securities and Exchange
Commission in a proxy statement soliciting proxies for the
election of such nominees, and (vi) the consent to serve as a
director of the Corporation, if elected, of each such nominee. In
the event that a person is validly designated as a nominee and
shall thereafter become unable or unwilling to stand for election
to the Board, the Board or the stockholder who proposed such
nominee, as the case may be, may designate a substitute nominee.
If the Chairman of the Election Meeting determines that a
nomination was not made in accordance with the foregoing
procedures, such nomination shall be void.
Section 4. Vacancies and Newly Created Directorships. Any
vacancy in the Board caused by death, resignation, removal or
otherwise, or through an increase in the number of directors of a
class, shall be filled by a majority vote of the remaining
directors, or by the sole remaining director. A director so
elected to fill a vacancy shall serve for the remainder of the
then present term of the directorship to which he or she was
elected.
Section 5. Initial Meeting. The Board shall meet as soon as
practicable after the annual election of directors and notice of
such first meeting shall not be required.
Section 6. Regular Meetings. Regular meetings of the Board
shall be held without call or notice at such time and place as
shall from time to time be fixed by standing resolution of the
Board.
Section 7. Special Meetings. Special meetings of the Board
may be called at any time, and for any purpose permitted by law,
by the Chairman of the Board, the President, the Secretary, or
any two members of the Board, which meetings shall be held at the
time and place designated by the person or persons calling the
meeting. Notice of the time, place and purpose of any such
meeting shall be given to the directors by the Secretary, or in
case of his or her absence, refusal or inability to act, by any
other officer. Any such notice may be given by mail, by
telegraph, by telephone, by personal service, or by any thereof
as to different directors. If the notice is by mail, then it
shall be deposited in a United States Post Office at least four
days before the time of the meeting; if by telegraph, by deposit
of the message with the telegraph company at least forty-eight
hours before the time of the meeting; if by telephone or by
personal service, at least forty-eight hours before the time of
the meeting.
Section 8. Quorum. At all meetings of the Board a majority
of the whole Board shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board, except as may be
otherwise specifically provided by applicable law, by the
Certificate of Incorporation or by these Bylaws. Any meeting of
the Board may be adjourned to meet again at a stated day and
hour. Even though no quorum is present, as required in this
Section, a majority of the directors present at any meeting of
the Board, either regular or special, may adjourn from time to
time until a quorum be had, but no later than the time fixed for
the next regular meeting of the Board. Notice of any adjourned
meeting need not be given.
Section 9. Fees and Compensation. Each Director and each
member of a committee of the Board shall receive such fees and
reimbursement of expenses incurred on behalf of the corporation
or in attending meetings as the Board may from time to time
determine.
Section 10. Meetings by Telephonic Communication. Members
of the Board or any committee thereof may participate in a
regular or special meeting of such Board or committee by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other, if the standing resolutions fixing the time and place of a
regular meeting or if the notice of the time and place of any
regular or special meeting provides for such participation.
Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
Section 11. Committees. The Board may, by resolution passed
by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the
directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a
committee and if the Board has not designated one or more
alternates (or if such a designation has been made, in the
absence or disqualification of such alternate(s)), the member or
members there of present at any meeting and not disqualified from
voting, whether not he, she or they constitute a quorum, may
unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member or
alternate. Any such committee, to the extent provided in a
resolution of the Board shall have and may exercise all the
powers and authority of the Board in the management of the
business and affairs of the Corporation,and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or
authority in reference to amending the Certificate of
Incorporation or these Bylaws, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution;
and, unless a resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to
authorize the issuance of capital stock.
Section 12. Action Without Meetings. Unless otherwise
restricted by applicable law, the Certificate of Incorporation or
these Bylaws, any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken
without meeting if all members of the Board or of such committee
consent thereto in writing as the case may be, and the writing or
writings are filed with the minutes of proceedings of the Board
or committee.
Section 13. Removal. Unless otherwise restricted by the
Certificate of Incorporation or bylaw, any Director or the entire
Board may be removed, with or without cause,by the holders of a
majority of shares entitled to vote at an election of Directors.
ARTICLE IV
OFFICERS
Section 1. Officers. The Corporation shall have a Chairman
of the Board, a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Corporation may also, at the
discretion of the Board of Directors, have as officers of the
Corporation one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as may be elected or
appointed in accordance with; the provisions of Section 3 of this
Article. Any two or more of such offices, except those of
President and Secretary, may be held by the same person.
Section 2. Election. The officers of the Corporation,
except such officer as may be elected or appointed in accordance
with the provisions of Section 3 or Section 5 of this Article,
shall be chosen annually by, and shall serve at the pleasure of,
the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or
until their respective successors shall be elected.
Section 3. Subordinate Officers. The Board may elect, and
may empower the President to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold
office for such period, have such authority and perform such
duties as are provided in these Bylaws or as the Board may from
time to time determine.
Section 4. Removal and Resignation. Any officer may be
removed, either with or without cause, by the Board at any time
or, except in the case of an officer not chosen by the Board, by
any officer upon whom such power of removal may be conferred by
the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment
of the officer.
Any officer may resign at any time by giving written notice
to the Corporation, but without prejudice to the rights, if any,
of the Corporation under any contract to which the officer is a
party. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these Bylaws for
regular election or appointment to such office.
Section 6. Chairman of the Board. The Chairman of the Board
shall be the chief executive officer of the Corporation. Subject
to the control of the Board and to the powers vested by the Board
in any committee or committees appointed by the Board, the
Chairman of the Board shall have general supervision, direction
and control of the business and officers of the Corporation and
shall preside at all meetings of the stockholders and of the
Board. The Chairman of the Board shall have the general powers
and duties of management usually vested in the chief executive
officer of a corporation and shall have such other powers and
duties as may be prescribed by the Board or the Bylaws.
Section 7. President. The President shall be the chief
operating officer of the Corporation and, subject to the
direction of the Board, the committees of the Board and the chief
executive officer of the Corporation, the President shall have
and exercise general supervision over the operations and
subordinate officers of the Corporation and shall have such other
powers and duties as may be prescribed by the Board of Bylaws. In
the absence or disability of the chief executive officer, the
President shall perform all the duties of the chief executive
officer and when so acting shall have all the powers of and be
subject to all the restrictions upon the chief executive officer.
Section 8. Vice Presidents. In the absence or disability of
the chief executive officer and the President,the Vice
Presidents, in order of their rank as fixed by the Board, or, if
not ranked, the Vice President designated by the Board shall
perform all the duties of the President and when so acting shall
have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall have such other
powers and perform such duties as may be prescribed for them,
respectively, from time to time, by the Board or the Bylaws.
Section 9. Secretary. The Secretary shall keep or cause to
be kept, at the principal executive office and such other place
as the Board may order, a book of minutes of all meetings of
stockholders, the Board and its committees, with the time and
place of holding, whether regular or special, and if special, how
authorized, the notice thereof given, the names of those present
at Board and committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings
thereof. The Secretary shall keep, or cause to be kept, a copy of
the Bylaws of the Corporation at the principal executive office
or business office.
The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the Corporation's
transfer agent or registrar, if one be appointed, a share
register, or a duplicate share register,showing the names of the
stockholders and their addresses,the number and classes of shares
held by each, the number and date of certificates issued for the
same, and the number and date of cancellation of every
certificate surrendered for cancellation.
The Secretary shall give, or cause to be given,notice of all
meetings of the stockholders and of the Board and any committees
thereof required by these Bylaws or bylaw to be given, shall keep
the seal of the Corporation in safe custody, and shall have such
other powers and perform such other duties as may be prescribed
by the Board.
Section 10. Treasurer. The Treasurer is the chief financial
officer of the Corporation and shall keep and maintain, or cause
to be kept and maintained, adequate and correct accounts of the
properties and business transactions of the Corporation, and
shall send or cause to be sent to the stockholders of the
Corporation such financial statements and reports as are by law
or these Bylaws required to be sent to them. The books of account
shall at all times be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables
in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board.The Treasurer
shall disburse the funds of the Corporation as may be ordered by
the Board, shall render to the President and the directors,
whenever they request it, an account of all transactions as
Treasurer and of the financial condition of the Corporation, and
shall have such other powers and perform such other duties as may
be prescribed by the Board.
ARTICLE V
SEAL
It shall not be necessary to the validity of any instrument
executed by any authorized officer or officers of the
Corporation, that the execution of such instrument be evidenced
by the corporate seal, and all documents, instruments, contracts,
and writings of all kinds signed on behalf of the Corporation by
any authorized officer or officers thereof shall be as effectual
and binding on the Corporation without the corporate seal, as if
the execution of the same had been evidenced by affixing the
corporate seal thereto.
ARTICLE VI
FORM OF STOCK CERTIFICATE
Every holder of capital stock in the Corporation shall be
entitled to have a certificate signed by, or in the name of, the
Corporation by the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation,certifying the number of
shares owned by him or her in the Corporation. Any or all of the
signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer
agent, or registrar at the date of the issue.
ARTICLE VII
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chairman of the Board, the President or any other
officer or officers authorized by the Board are each authorized
to vote, represent, and exercise on behalf of the Corporation all
rights incident to any and all shares of any other corporation or
corporations standing in the name of the Corporation. The
authority herein granted may be exercised either by any such
officer in person or by any other person authorized so to do by
proxy or power of attorney duly executed by said officer.
ARTICLE VIII
TRANSFERS OF STOCK
Upon surrender to the Corporation or a transfer agent of the
Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession,assignment, or
authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel
the old certificate, and record the transaction upon its books.
ARTICLE IX
LOST, STOLEN, OR DESTROYED CERTIFICATES
The Board may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of the fact by the
person claiming the certificate of stock to be lost, stolen, or
destroyed. When authorizing such issue of a new certificate or
certificates, the Board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate or certificates, or his or
her legal representative, to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate
alleged to have been lost, stolen, or destroyed.
ARTICLE X
RECORD DATE
The Board may fix in advance a date, which shall not be more
than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or ex-change of capital stock shall
go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of stockholders
entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the
rights in respect of any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such
stockholders, and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend,or to receive such allotment
of rights, or to exercise such rights, or to give such consent,
as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as
aforesaid.
ARTICLE XI
REGISTERED STOCKHOLDERS
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by applicable
law.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by
resolution of the Board.
ARTICLE XIII
NOTICES
Section 1. Manner of Notice. Whenever under the provisions
of applicable law, the Certificate of Incorporation or these
Bylaws, notice is required to be given to any director, committee
member, officer, or stockholder, it shall not be construed to
mean personal notice, but such notice may be given, in the case
of stockholders, in writing, by mail, by depositing the same in
the post office or letter box, in a postpaid sealed wrapper,
addressed to such stockholder, at such address as appears on the
books of the Corporation, or, in default of other address, to
such stockholder at the General Post Office in the City of
Wilmington, Delaware, and, in the case of directors, commit-tee
members and officers, by telephone, or by mail or by telegram to
the last business address known to the Secretary of the
Corporation, and such notice shall be deemed to be given at the
time when the same shall be thus mailed or telegraphed or
telephoned.
Section 2. Waiver of Notice. Whenever any notice is required
to be given under the provisions of applicable law, the
Certificate of Incorporation or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE XIV
AMENDMENTS
The Board shall have the power to make, adopt, alter, amend
and repeal from time to time bylaws of this Corporation, subject
to the right of the stockholders entitled to vote with respect
thereto to adopt, alter, amend, and repeal bylaws made by the
Board; provided, however, that these Bylaws shall not be adopted,
altered, amended, or repealed by the stockholders of the
Corporation, except by the vote of the holders of not less than
two-thirds of the outstanding shares of Common Stock.
ARTICLE XV
INDEMNIFICATION AND INSURANCE
Section 1. Right to Indemnification. Each person who was or
is a party or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she
is the legal representative, is or was a director or officer of
the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action or
inaction in an official capacity or in any other capacity while
serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent permitted by the laws of Delaware, as the same exist or
may hereafter be amended, against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such
person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that,
except as provided in Section 2 hereof, the Corporation shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. The right to indemnification
conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding; shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Section
or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
Section 2. Right of Claimant to Bring Suit. If a claim
under Section 1 of this Article is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant
has failed to meet a standard of conduct which makes it
permissible under Delaware law for the Corporation to indemnify
the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, and its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is permissible in the circumstances because he or she
has met such standard of conduct, nor an actual determination by
the Corporation (including its Board of Directors, independent
legal counsel, and its stockholders) that the claimant has not
met such standard of conduct, shall be a defense to the action or
create a presumption that the claimant has failed to meet such
standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in
this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability, loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under Delaware law.
Section 5. Expenses as a Witness. To the extent that any
director, officer, employee or agent of the Corporation is by
reason of such position, or a position with another entity at the
request of the Corporation, a witness in any action, suit or
proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith.
Section 6. Indemnity Agreements. The Corporation may enter
into agreements with any director, officer, employee or agent of
the Corporation providing for indemnification to the full extent
permitted by Delaware law.