EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
FRESH ENTERPRISES, INC.
TABLE OF CONTENTS
ARTICLE I OFFICES ................................................................. 1
Section 1. PRINCIPAL OFFICES ................................................ 1
Section 2. OTHER OFFICES .................................................... 1
ARTICLE II MEETINGS OF SHAREHOLDERS ............................................... 1
Section 1. PLACE OF MEETINGS ................................................ 1
Section 2. ANNUAL MEETINGS OF SHAREHOLDERS .................................. 1
Section 3. SPECIAL MEETINGS ................................................. 1
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS ................................. 2
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE ..................... 2
Section 6. QUORUM ........................................................... 3
Section 7. ADJOURNED MEETING AND NOTICE THEREOF ............................. 3
Section 8. VOTING ........................................................... 3
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS ............... 3
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING .......... 4
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS .. 4
Section 12. PROXIES .......................................................... 5
Section 13. INSPECTORS OF ELECTION ........................................... 5
ARTICLE III DIRECTORS ............................................................. 6
Section 1. POWERS ........................................................... 6
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS ............................ 7
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS ......................... 7
Section 4. VACANCIES ........................................................ 7
Section 5. PLACE OF MEETINGS AND TELEPHONIC MEETINGS ........................ 8
Section 6. ANNUAL MEETINGS .................................................. 8
Section 7. OTHER REGULAR MEETINGS ........................................... 8
Section 8. SPECIAL MEETINGS ................................................. 8
Section 9. DISPENSING WITH NOTICE ........................................... 8
Section 10. QUORUM ........................................................... 9
Section 11. ADJOURNMENT ...................................................... 9
Section 12. NOTICE OF ADJOURNMENT ............................................ 9
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Section 13. ACTION WITHOUT MEETING ....................................... 9
Section 14. FEES AND COMPENSATION OF DIRECTORS ........................... 9
ARTICLE IV COMMITTEES .......................................................... 9
Section 1. COMMITTEES OF DIRECTORS ...................................... 9
Section 2. MEETINGS AND ACTION OF COMMITTEES ............................ 10
ARTICLE V OFFICERS ............................................................. 10
Section 1. OFFICERS ..................................................... 10
Section 2. ELECTION OF OFFICERS ......................................... 11
Section 3. SUBORDINATE OFFICERS, ETC .................................... 11
Section 4. REMOVAL AND RESIGNATION OF OFFICERS .......................... 11
Section 5. VACANCIES IN OFFICES ......................................... 11
Section 6. CHAIRMAN OF THE BOARD ........................................ 11
Section 7. PRESIDENT .................................................... 11
Section 8. VICE PRESIDENTS .............................................. 11
Section 9. SECRETARY .................................................... 12
Section 10. CHIEF FINANCIAL OFFICER ...................................... 12
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS .. 12
ARTICLE VII RECORDS AND REPORTS ................................................ 13
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER ................. 13
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS ......................... 13
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS ........ 14
Section 4. INSPECTION BY DIRECTORS ...................................... 14
Section 5. ANNUAL REPORT TO SHAREHOLDERS ................................ 14
Section 6. FINANCIAL STATEMENTS ......................................... 14
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION ...................... 15
ARTICLE VIII GENERAL CORPORATE MATTERS ......................................... 15
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ........ 15
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS .................... 15
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED ............ 16
Section 4. CERTIFICATES FOR SHARES ...................................... 16
Section 5. LOST CERTIFICATES ............................................ 16
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Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS ........... 16
ARTICLE IX AMENDMENTS ..................................................... 17
Section 1. AMENDMENT BY SHAREHOLDERS ................................ 17
Section 2. AMENDMENT BY DIRECTORS ................................... 17
ARTICLE X GENERAL ......................................................... 17
Section 1. GOVERNING LAW ............................................ 17
Section 2. CONSTRUCTION AND DEFINITIONS ............................. 17
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AMENDED AND RESTATED BYLAWS
OF
FRESH ENTERPRISES, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES. The Board of Directors shall fix the location
of the principal executive office of the corporation at any place within or
outside the State of California. If the principal executive office is located
outside this state, and the corporation has one or more business offices in this
state, the Board of Directors shall likewise fix and designate a principal
business office in the State of California.
Section 2. OTHER OFFICES. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any
place within or outside the State of California designated by the Board of
Directors. In the absence of any such designation, shareholders' meetings shall
be held at the principal executive office of the corporation.
Section 2. ANNUAL MEETINGS OF SHAREHOLDERS. The annual meeting of
shareholders shall be held each year on a date and at a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. SPECIAL MEETINGS. A special meeting of the shareholders may be
called at any time by the Board of Directors, or by the Chairman of the Board,
or by the President, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at any such meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, the President, any
Vice President or the Secretary of the corporation. The officer receiving such
request forthwith shall cause notice to be given to the shareholders entitled to
vote, in accordance with the provisions of Sections 4 and 5 of this Article II,
that a meeting will be held at the time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty
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(60) days after the receipt of the request. If the notice is not given within
twenty (20) days after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing contained in this paragraph of this
Section 3 shall be construed as limiting, fixing or affecting the time when a
meeting of shareholders called by action of the Board of Directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting being noticed. The notice shall specify the place, date and
hour of the meeting and (i) in the case of a special meeting, the general nature
of the business to be transacted, or (ii) in the case of the annual meeting
those matters which the Board of Directors, at the time of giving the notice,
intends to present for action by the shareholders. The notice of any meeting at
which directors are to be elected shall include the name of any nominee or
nominees which, at the time of the notice, management intends to present for
election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the articles of incorporation, pursuant to Section 902 of such
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
such Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of such Code, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares pursuant to Section 2007 of such
Code, the notice shall also state the general nature of such proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of shareholders shall be given either personally or by first-class mail,
addressed to the shareholder at the address of such shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice. If no such address appears on the corporation's books or has
been so given, notice shall be deemed to have been given if sent by first-class
mail or telegraphic or other-written communication to the corporation's
principal executive office, or if published at least once in a newspaper of
general circulation in the county where such office is located. Notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of such shareholder
appearing on the books of the corporation is returned to the corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the shareholder at such address, all
future notices or reports shall be deemed to have been duly given without
further mailing if the same shall be available to the shareholder upon written
demand of the shareholder at the principal executive office of the corporation
for a period of one year from the date of the giving of such notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, Assistant Secretary or
any transfer agent of the corporation giving such notice, and shall be filed and
maintained in the minute book of the corporation.
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Section 6. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present at
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 7. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of the majority of the shares represented at such
meeting, either in person or by proxy, but in the absence of a quorum, no other
business may be transacted at such meeting, except as provided in Section 6 of
this Article II.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the Board of Directors shall set a new record
date. Notice of any such adjourned meeting, if required, shall be given to each
shareholder of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 4 and 5 of this Article II. At any adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section 11
of this Article II, subject to the provisions of Sections 702 to 704, inclusive,
of the Corporations Code of California (relating to voting shares held by a
fiduciary, in the name of a corporation or in joint ownership). Such vote maybe
by voice vote or by ballot; provided, however, that all elections for directors
must be by ballot upon demand by a shareholder at any election and before the
voting begins. Any shareholder entitled to vote on any matter (other than the
election of directors) may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal, but,
if the shareholder fails to specify the number of shares such shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares such shareholder is entitled to
vote. If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and voting on any matter (other than the election of
directors), provided that the shares voting affirmatively must also constitute
at least a majority of the required quorum, shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by the California General Corporation Law or the articles of
incorporation.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business to
be transacted or the
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purpose of any annual or special meeting of shareholders, except that if action
is taken or proposed to be taken for approval of any of those matters specified
in the second paragraph of Section 4 of this Article II, the waiver of notice or
consent shall state the general nature of such proposal. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a waiver of
notice of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if such objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action which may be taken at any annual or special meeting of shareholders may
be taken without a meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding
shares 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. In the case of election of directors, such
consent shall be effective only if signed by the holders of all outstanding
shares entitled to vote for the election of directors; provided, however, that a
director may be elected at any time to fill a vacancy not created by removal and
not filled by the directors by the written consent of the holders of a majority
of the outstanding shares entitled to vote for the election of directors. All
such consents shall be filed with the Secretary of the corporation and shall be
maintained in the corporate records. Any shareholder giving a written consent,
or the shareholder's proxy holders, or a transferee of the shares or a personal
representative of the shareholder or their respective proxy holder, may revoke
the consent by a writing received by the Secretary of the corporation prior to
the time that written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, the Secretary shall give prompt notice of any corporate
action approved by the shareholders without a meeting by less than unanimous
consent, to those shareholders entitled to vote who have not consented in
writing. Such notice shall be given in the manner specified in Section 5 of this
Article II. In the case of approval of (i) contracts or transactions in which a
director has a direct or indirect financial interest, pursuant to Section 310 of
the Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of such Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of such Code, or (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares pursuant to Section 2007 of such Code, such notice shall be given at
least ten (10) days before the consummation of any such action authorized by any
such approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING
CONSENTS. For purposes of determining the shareholders entitled to notice of any
meeting or to vote or entitled to give consent to corporate action without a
meeting, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days prior to the date
of any such meeting nor more than sixty (60) days prior to such action without a
meeting, and in such case only shareholders of record at the close of business
on the
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date so fixed are entitled to notice and to vote or to give consents, as the
case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date fixed as aforesaid, except as otherwise
provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held.
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the Board has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the Board has been
taken, shall be at the close of business on the day on which the Board
adopts the resolution relating thereto, or the sixtieth (60th) day prior to
the date of such other action, whichever is later.
Section 12. PROXIES. Every person entitled to vote for directors or on any
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
Secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, prior to the vote pursuant thereto, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy presented to the meeting and executed by, or attendance at the
meeting and voting in person by, the person executing the proxy; or (ii) written
notice of the death or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted; provided, however, that
no such proxy shall be valid after the expiration of eleven (11) months from the
date of such proxy, unless otherwise provided in the proxy. The revocability of
a proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 705(e) and (f) of the Corporations Code of California.
Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders, the
Board of Directors may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any shareholder or a shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall, appoint a person to
fill such vacancy.
The duties of these inspectors shall be as follows:
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(a) Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a
quorum, and the authenticity, validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election
or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors.
Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the directors shall have the
power and authority to:
(a) Select and remove all officers, agents, and employees of the
corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the articles of incorporation or these bylaws, fix
their compensation, and require from them security for faithful service.
(b) Change the principal executive office or the principal
business office in the State of California from one location to another;
cause the corporation to be qualified to do business in any other state,
territory, dependency, or foreign country and conduct business within or
outside the State of California; designate any place within or without the
State for the holding of any shareholders' meeting or meetings, including
annual meetings; adopt, make and use a corporate seal, and prescribe the
forms of certificates of stock, and alter the form of such seal and of such
certificates from time to time as in their judgment they may deem best,
provided that such forms shall at all times comply with the provisions of
law.
(c) Authorize the issuance of shares of stock of the corporation
from time to time, upon such terms as may be lawful, in consideration of
money paid, labor
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done or services actually rendered, debts or securities cancelled or
tangible or intangible property actually received.
(d) Borrow money and incur indebtedness for the purposes of the
corporation, and cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of
directors shall be seven (7) until changed by an amendment to this bylaw adopted
by the vote or written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that an amendment reducing the
number of directors to a number less than five (5) cannot be adopted if the
votes cast against its adoption at a meeting, or the shares not consenting in
the case of action by written consent, are equal to more than 16-2/3% of the
outstanding shares entitled to vote.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
Section 4. VACANCIES. Vacancies in the Board of Directors may be filled by
a majority of the remaining directors, though less than a quorum, or by a sole
remaining director, except that a vacancy created by the removal of a director
by the vote or written consent of the shareholders or by court order may be
filled only by the vote of a majority of the shares represented and voting at a
duly held meeting at which a quorum is present, or by the written consent of
holders of all outstanding shares entitled to vote. Each director so elected
shall hold office until the next annual meeting of the shareholders and until a
successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
in the case of the death, resignation or removal of any director, or if the
Board of Directors by resolution declares vacant the office of a director who
has been declared of unsound mind by an order of court or convicted of a felony,
or if the authorized number of directors be increased, or if the shareholders
fail, at any meeting of shareholders at which any director or directors are
elected, to elect the full authorized number of directors to be voted for at
that meeting.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, but any such election by
written consent, other than to fill a vacancy created by removal, shall require
the consent of a majority of the outstanding shares entitled to vote.
Any director may resign upon giving written notice to the Chairman of the
Board, the President, the Secretary or the Board of Directors. A resignation
shall be effective upon the giving of the notice, unless the notice specifies a
later time for its effectiveness. If the resignation of a director is effective
at a future time, the Board of Directors may elect a successor to take office
when the resignation becomes effective.
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No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office.
Section 5. PLACE OF MEETINGS AND TELEPHONIC MEETINGS. Regular meetings of
the Board of Directors may be held at any place within or without the State that
has been designated from time to time by resolution of the board. In the absence
of such designation, regular meetings shall be held at the principal executive
office of the corporation. Special meetings of the board shall be held at any
place within or without the State that has been designated in the notice of the
meeting or, if not stated in the notice or there is no notice, at the principal
executive office of the corporation. Any meeting, regular or special, may be
held by conference telephone or similar communication equipment, so long as all
directors participating in such meeting can hear one another, and all such
directors shall be deemed to be present in person at such meeting.
Section 6. ANNUAL MEETINGS. Immediately following each annual meeting of
shareholders, the Board of Directors shall hold a regular meeting for the
purpose of organization, any desired election of officers and the transaction of
other business. Notice of this meeting shall not be required.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the Board of
Directors shall be held without call at such time as shall from time to time be
fixed by the Board of Directors. Such regular meetings may be held without
notice.
Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Chairman of the Board
or the President or any Vice President or the Secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone, including a voice messaging system or other system
or technology designed to record and communicate messages, telegraph, facsimile,
electronic mail, or other electronic means to each director or sent by
first-class mail, charges prepaid, addressed to each director at his or her
address as it is shown upon the records of the corporation. In case such notice
is mailed, it shall be deposited in the United States mail at least four (4)
days prior to the time of the holding of the meeting. In case such notice is
delivered personally, or by telephone, telegraph, facsimile, electronic mail, or
other electronic means, it shall be so delivered at least forty-eight (48) hours
prior to the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated to either the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The notice need not
specify the purpose of the meeting nor the place if the meeting is to be held at
the principal executive office of the corporation.
Section 9. DISPENSING WITH NOTICE. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum be present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify the purpose of the meeting. All such waivers, consents and
approvals shall be filed
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with the corporate records or made a part of the minutes of the meeting. Notice
of a meeting need not be given to any director who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director.
Section 10. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
hereinafter provided. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors, subject to the provisions of
Section 310 of the Corporations Code of California (approval of contracts or
transactions in which a director has a direct or indirect material financial
interest), Section 311 (appointment of committees), and Section 317 (e)
(indemnification of directors). A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of directors,
if any action taken is approved by at least a majority of the required quorum
for such meeting.
Section 11. ADJOURNMENT. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of holding
an adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four (24) hours, in which case notice of such time and place shall
be given prior to the time of the adjourned meeting, in the manner specified in
Section 8 of this Article III, to the directors who were not present at the time
of the adjournment.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the Board of Directors may be taken without a meeting, if all members
of the board shall individually or collectively consent in writing to such
action.
Such action by written consent shall have the same force and effect as a
unanimous vote of the Board of Directors. Such written consent or consents shall
be filed with the minutes of the proceedings of the board.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
Board of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for such services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. Any such committee, to the extent
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provided in the resolution of the board, shall have all the authority of the
board, except with respect to:
(a) the approval of any action which, under the General
Corporation Law of California, also requires shareholders' approval or
approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in any
committee;
(c) the fixing of compensation of the directors for serving on
the board or on any committee;
(d) the amendment or repeal of bylaws or the adoption of new
bylaws;
(e) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the corporation,
except at a rate or in a periodic amount or within a price range determined
by the Board of Directors; or
(g) the appointment of any other committees of the Board of
Directors or the members thereof.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these bylaws, Sections 5 (place of meetings), 7
(regular meetings), 8 (special meetings and notice), 9 (dispensing with notice),
10 (quorum), 11 (adjournment), 12 (notice of adjournment) and 13 (action without
meeting), with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the Board of Directors and its
members, except that the time of regular meetings of committees may be
determined by resolution of the Board of Directors as well as the committee,
special meetings of committees may also be called by resolution of the Board of
Directors and notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The Board of Directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a President,
a Secretary and a Chief Financial Officer. The corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article V. Any number of offices may be held by the same
person.
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Section 2. ELECTION OF OFFICERS. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section 3
of this Article V, shall be chosen by the Board of Directors, and each shall
serve at the pleasure of the board, subject to the rights, if any, of an officer
under any contract of employment.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint,
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 the bylaws or as
the Board of Directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting thereof, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. 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. Any such resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is a party.
Section 5. VACANCIES IN OFFICES. 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 appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by the
bylaws. If there is no President, the Chairman of the Board shall in addition be
the Chief Executive Officer of the corporation and shall have the powers and
duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and the officers of
the corporation. He shall preside at all meetings of the shareholders and, in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors. He shall have the general powers and duties of
management usually vested in the office of President of a corporation, and shall
have such other powers and duties as may be prescribed by the Board of Directors
or the bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of the President,
the Vice Presidents, if any, in order of their rank as fixed by the Board of
Directors or, if not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the President,
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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 other duties as from time to time may be prescribed for
them respectively by the Board of Directors or the bylaws, the President or the
Chairman of the Board if there is no President.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office or such other place as the Board of Directors may
order, a book of minutes of all meetings and actions of directors, committees of
directors and shareholders, 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 directors' and committee meetings, the number of shares
present or represented at shareholders' meetings, and the proceedings thereof.
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, as
determined by resolution of the Board of Directors, a share register, or a
duplicate share register, showing the names of all shareholders 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 shareholders and of the Board of Directors required by the bylaws or by law
to be given, and he shall keep the seal of the corporation, if one be adopted,
in safe custody, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or by the bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books
of account shall be open at all reasonable times to inspection by any director.
The Chief Financial Officer 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 of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, shall render to the
President and directors, whenever they request it, an account of all of his
transactions as Chief Financial Officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
The corporation shall, to the maximum extent permitted by the General
Corporation Law of California, indemnify each of its directors and officers
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any
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proceeding arising by reason of the fact any such person is or was a director or
officer of the corporation and shall advance to such director or officer
expenses incurred in defending any such proceeding to the maximum extent
permitted by such law. For purposes of this Article VI, a "director" or
"officer" of the corporation includes any person who is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, or other
enterprise, or was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation. The Board of Directors may in its
discretion provide by resolution for such indemnification of, or advance of
expenses to, other agents of the corporation, and likewise may refuse to provide
for such indemnification or advance of expenses except to the extent such
indemnification is mandatory under the California General Corporation law.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The corporation
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, if either be appointed and as determined by resolution of
the Board of Directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each
shareholder.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours upon five, (5) business
days prior written demand upon the corporation, and/or (ii) obtain from the
transfer agent of the corporation, upon written demand and upon the tender of
such transfer agent's usual charges for such list, a list of the shareholders'
names and addresses, who are entitled to vote for the election of directors, and
their shareholdings, as of the most recent record date for which such list has
been compiled or as of a date specified by the shareholder subsequent to the
date of demand. Such list shall be made available to such shareholder or
shareholders by the transfer agent on or before the later of five (5) business
days after the demand is received or the date specified therein as the date as
of which the list is to be compiled. The record of shareholders shall also be
open to inspection upon the written demand of any shareholder or holder of a
voting trust certificate, at any time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of a voting trust certificate. Any inspection and copying under this Section 1
may be made in person or by an agent or attorney of the shareholder or holder of
a voting trust certificate making such demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep
at its principal executive office, or if its principal executive office is not
in the State of California at its principal business office in this state, the
original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside this state and the
corporation has no principal business office in this state, the Secretary shall,
upon the written request of any shareholder, furnish to such shareholder a copy
of the bylaws as amended to date.
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Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The
accounting books and records and minutes of proceedings of the shareholders and
the Board of Directors and any committee or committees of the Board of Directors
shall be kept at such place or places designated by the Board of Directors, or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. Such minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of a voting trust certificate. Such inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. The foregoing rights of inspection shall extend to the
records of each subsidiary corporation of the corporation.
Section 4. INSPECTION BY DIRECTORS. Every director shall have the absolute
right at any reasonable time to inspect all books, records and documents of
every kind and the physical properties of the corporation and each of its
subsidiary corporations. Such inspection by a director may be made in person or
by agent or attorney and the right of inspection includes the right to copy and
make extracts.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders
referred to in Section 1501 of the General Corporation Law is expressly
dispensed with, but nothing herein shall be interpreted as prohibiting the Board
of Directors from issuing annual or other periodic reports to the shareholders
of the corporations as they deem appropriate.
Section 6. FINANCIAL STATEMENTS. A copy of any annual financial statement
and any income statement of the corporation for each quarterly period of each
fiscal year, and any accompanying balance sheet of the corporation as of the end
of each such period, that has been prepared by the corporation shall be kept on
file in the principal executive office of the corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any such statement or a copy shall be
mailed to any such shareholder.
If the corporation has not sent to the shareholders an annual report for
the last fiscal year, a balance sheet as of the end of such fiscal year and an
income statement and statement of changes in financial position for such fiscal
year shall, upon the written request of any shareholder made more than one
hundred twenty (120) days after the close of such fiscal year, be delivered or
mailed to such shareholder within thirty (30) days after such request.
If a shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation make a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty (30) days prior to the date of the request, and a balance sheet
of the corporation as of the end of such period, the Chief Financial Officer
shall cause such statement to be prepared, if not already prepared, and shall
deliver personally or mail such statement or statements to the person making the
request within thirty (30) days after the receipt of such request.
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The corporation also shall, upon the written request of any shareholder,
mail to the shareholder a copy of the last annual, semi-annual or quarterly
income statement which it has prepared and a balance sheet as of the end of such
period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation shall
each year during the calendar month in which its articles of incorporation were
originally filed with the California Secretary of State, or at any time during
the immediately preceding five (5) calendar months, file with the Secretary of
State of the State of California, on the prescribed form, a statement setting
forth the names and complete business or residence addresses of all incumbent
directors, the number of vacancies on the Board of Directors, if any, the names
and complete business or residence addresses of the Chief Executive Officer,
Secretary and Chief Financial Officer, the street address of its principal
executive office or principal business office in this state and the general type
of business constituting the principal business activity of the corporation,
together with a designation of the agent of the corporation for the purpose of
service of process, all in compliance with Section 1502 of the Corporations Code
of California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For
purposes of determining the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, (other than action by
shareholders by written consent without a meeting) the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
prior to any such action, and in such case only shareholders of record on the
date so fixed are entitled to receive the dividend, distribution or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the record date
fixed as aforesaid, except as otherwise provided in the California General
Corporation Law.
If the Board of Directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the board adopts the resolution relating thereto,
or the sixtieth (60th) day prior to the date of such action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts or
other orders for payment of money; notes or other evidences of indebtedness,
issued in the name of or payable to the corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board of Directors.
15
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of
Directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the Board of Directors or within the agency power of an officer, 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 for any purpose or to any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any such shares are fully paid, and the Board of Directors may
authorize the issuance of certificates or shares as partly paid provided that
such certificates shall state the amount of the consideration to be paid
therefor and the amount paid thereon. All certificates shall be signed in the
name of the corporation by the Chairman of the Board or Vice Chairman of the
Board or the President or Vice President and by the Chief Financial Officer or
an Assistant Treasurer or the Secretary or any Assistant Secretary, certifying
the number of shares and the class or series of shares owned by the shareholder.
Any or all of the signatures on the certificate may be 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 such person were an officer,
transfer agent or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as hereinafter in this Section 5
provided, no new certificates for shares shall be issued in lieu of an old
certificate unless the latter is surrendered to the corporation and cancelled at
the same time. The Board of Directors may in case any share certificate or
certificate for any other security is lost, stolen or destroyed, authorize the
issuance of a new certificate in lieu thereof, upon such terms and conditions as
the board may require, including provision for indemnification of the
corporation secured by a bond or other adequate security sufficient to protect
the corporation against any claim that may be made against it, including any
expense or liability, on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of
the Board, the President, or any Vice President, or any other person authorized
by resolution of the Board of Directors by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority herein granted to said officers to vote
or represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by any
such officer in person or by any person authorized to do so by proxy duly
executed by said officer.
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ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these
bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the articles of incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of directors may
be changed only by an amendment of the articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article IX, bylaws, other than a
bylaw or an amendment thereof changing the authorized number of directors, may
be adopted, amended or repealed by the Board of Directors.
ARTICLE X
GENERAL
Section 1. GOVERNING LAW. This corporation is organized under the
provisions of the California General Corporation Law (Corporations Code Sections
100-2319) as in effect on the date of filing of its original articles of
incorporation, namely April 30, 1997. Upon such filing the California Secretary
of State assigned the following corporation number to this corporation: 2009452.
The corporate affairs of this corporation shall be governed by and conducted in
accordance with the provisions of the California General Corporation Law, as the
same presently exist and are from time to time hereafter amended or superseded,
except in those instances where the articles of incorporation or bylaws of this
corporation, now or through amendment hereafter, may adopt alternative rules
which are permissible under the California General Corporation Law. Any
provision (or portion thereof) in these bylaws which is not permissible under
the California General Corporation Law or is inconsistent with the articles of
incorporation of this corporation (as they may from time to time be amended and
supplemented) is void, but the balance of these bylaws shall nevertheless be
valid and effective.
Section 2. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of the foregoing, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am duly elected and acting Secretary of Fresh Enterprises, Inc.,
a California corporation: and
(2) That the foregoing Amended and Restated Bylaws constitute the bylaws of
said corporation as duly adopted by the written consent of the shareholders of
said corporation as of November 24, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 24th day of
November, 1998.
/s/ Frank M. Vest, Jr.
--------------------------------
Frank M. Vest, Jr.
Secretary
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AMENDMENT
TO
AMENDED AND RESTATED BYLAWS
OF
FRESH ENTERPRISES, INC.
THIS AMENDMENT (this "Amendment") amends the Amended and Restated
Bylaws of Fresh Enterprises, Inc. (the "Bylaws") as of the effectiveness of a
registration statement relating to the initial public offering of shares of the
corporation's common stock, and is made with reference to the following facts
(all capitalized terms not otherwise defined herein have the meanings set forth
in the Bylaws):
WHEREAS, the Board of Directors has determined that it is
necessary and advisable to amend the Bylaws to prohibit shareholder
actions without a meeting and to limit the business which can be
brought before a shareholders' meeting; and
WHEREAS, the amendment of the Bylaws has been duly approved by
the requisite consent of the corporation's shareholders,
NOW, THEREFORE, BE IT RESOLVED, that effective concurrently
with the effectiveness of a registration statement relating to the
initial public offering of shares of the corporation's common stock,
existing Article II, Section 10 of the Bylaws shall be deleted in its
entirety and the following shall be inserted in lieu thereof:
"Section 10. BUSINESS BROUGHT BEFORE THE MEETING. At any
annual meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting or any
adjournment thereof (i) by or at the direction of the Board of
Directors or (ii) by any shareholder of the corporation who is entitled
to vote with respect thereto and who complies with the notice
procedures set forth in this Section 10. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must
have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice must be delivered or
mailed to and received at the principal executive offices of the
corporation not later than the close of business on the 90th day nor
earlier than the 120th day prior to the anniversary of the preceding
year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60
days after such anniversary date, notice by the shareholder to be
timely must be so delivered not earlier than the close of business on
the 120th day prior to such annual meeting and not later than the 90th
day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by
the corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the
giving of a shareholder's notice as described above. ("Public
announcement" means disclosure in a press release, national news
service or in a
document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended). A shareholder's notice to
the Secretary shall set forth as to each matter such shareholder
proposes to bring before the annual meeting (i) a brief description of
the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and address, as they appear on the corporation's books, of the
shareholder proposing such business, (iii) the class and number of
shares of the corporation's capital stock that are beneficially owned
by such shareholder, (iv) any material interest of such shareholder in
such business, and (v) if the shareholder intends to deliver a proxy
statement and form of proxy to holders of at least the percentage of
the corporation's voting shares required under applicable law to carry
the proposal, a representation to that effect; provided, however, that
compliance by such shareholder with the notice provisions and other
requirements in this Section 10 shall not create a duty of the
corporation to include such shareholder's business or proposal in the
corporation's proxy statement or proxy, and notwithstanding such
compliance the corporation shall retain such discretion as it has to
omit such business or proposal from such proxy statement or proxy or
both. Notwithstanding anything in the Bylaws to the contrary, no
business shall be brought before or conducted at an annual meeting (i)
except in accordance with the provisions of this Section 10 or (ii) if
the shareholder solicits proxies in support of such shareholder's
proposal, without such shareholder having made the representation
required by clause (v) of the preceding sentence. The officer of the
corporation or other person presiding over the annual meeting shall, if
the facts so warrant, determine and declare to the meeting that
business was not properly brought before the meeting or any adjournment
thereof in accordance with the provisions of this Section 10 and, if he
or she should so determine, he or she shall so declare to the meeting
and any such business so determined to be not properly brought before
the meeting shall not be transacted. At any special meeting of the
shareholders, only such business shall be conducted as shall have been
brought before the meeting by or at the direction of the Board of
Directors."
Except as expressly amended herein, the Bylaws shall continue in full
force and effect in accordance with its terms.