BYLAWS
OF
FLEMING COMPANIES, INC.
ARTICLE I
Offices
Section 1.1. Principal Office. The principal office of Fleming
Companies, Inc. (the "Corporation") shall be located at 6301
Waterford Boulevard, Oklahoma City, Oklahoma.
Section 1.2. Other Offices. The Corporation may also have offices
at such other places both within or without the State of Oklahoma
as the Board of Directors may from time to time determine.
ARTICLE II
Meetings of Shareholders
Section 2.1. Annual Meeting. The annual meeting of the
shareholders shall be held on a date designated by the Board of
Directors, which shall be within six months next following the end
of the fiscal year of the Corporation, for the purpose of electing
directors and for the transaction of such other business as may
come before the meeting.
Section 2.2. Special Meetings. Except as otherwise prescribed by
statute, special meetings of the shareholders for any purpose, may
be called by the Chairman and shall be called by the Secretary at
the request in writing of a majority of the Board of Directors.
Business transactions at any special meeting shall be limited to
the general objects stated in the call.
Section 2.3. Place of Meeting. Each annual meeting of the
shareholders for the election of directors shall be held at the
principal office of the Corporation in Oklahoma City, Oklahoma
unless the Board of Directors shall by resolution, adopted at least
60 days prior to the date of such meeting, designate any other
place, within or without the State of Oklahoma, at the place of
such meeting. Meetings of shareholders for any other purpose may
be held at such place, within or without the State of Oklahoma, and
at such time as shall be determined by the Board of Directors or
the Chairman, such time to be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2.4. Notice of Meeting. Written or printed notice stating
the place and time of each annual or special meeting of the
shareholders entitled to vote and, in the case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be given not less than 10 days nor more than 60 days before
the date of the meeting. (See also Article IV).
Section 2.5. Shareholder List. A share ledger in which the names
of the shareholders are arranged alphabetically by classes of
shares, if any, shall be maintained and open for inspection at the
office of the Corporation in Oklahoma City if the meeting is to be
held in Oklahoma City, or at the place of the meeting if the
meeting is to be held outside of Oklahoma City, during ordinary
business hours, for a period of at least 10 days prior to the
meeting. The list shall also be available at the time and place of
the meeting, during the whole time of the meeting, and may be
inspected by any shareholder who is present. Such access to the
shareholder list shall be restricted to those shareholders whose
purpose in viewing the list is germane to the meeting.
Section 2.6. Quorum. The holders of voting stock of the
Corporation having a majority of the voting power thereat, present
in person or represented by proxy, shall be requisite for, and
shall constitute, a quorum at all meetings of the shareholders of
the Corporation for the transaction of business, except as
otherwise provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws.
Section 2.7. Proxies. At every meeting of the shareholders, each
shareholder having the right to vote thereat shall be entitled to
vote in person or by proxy. Such proxy shall be appointed by an
instrument in writing subscribed by such shareholder and bearing a
date not more than three years prior to such meeting, unless such
proxy provides for a longer period; and it shall be filed with the
Secretary of the Corporation before, or at the time of, the
meeting.
Section 2.8. Voting. At every meeting of shareholders, except as
otherwise provided by law, each shareholder shall be entitled to
one vote for each share of stock of the Corporation entitled to
vote thereat and registered in the name of such shareholder on the
books of the Corporation on the pertinent record date. When a
quorum is present at any meeting of the shareholders, the vote of
the holders of a majority of the 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, due to
a provision of the statutes or the Corporation's Certificate of
Incorporation or these Bylaws, a different vote is required, in
which case such provision shall govern and control the decision at
such question.
Section 2.9. Record Date. (a) In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment
or any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action other than shareholder action by written
consent, the Board of Directors may fix a record date, which shall
not precede the date such record date is fixed and shall not be
more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any such other action. If no record
date is fixed, 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 day next preceding the day on
which notice is given. The record date for any other purpose other
than shareholder action by written consent shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of shareholders of
record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
(b) In order that the Corporation may determine the
shareholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by
the Board of Directors. Any shareholder of record seeking to have
the shareholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the
Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of
Directors within 10 days of the date on which such a request is
received, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by applicable
law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the Corporation by delivery to its registered office in the
State of Oklahoma, its principal place of business, or any officer
or agent of the corporation having custody of the book in which
proceedings of meetings of shareholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the
record date for determining shareholders entitled to consent to
corporate action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
Section 2.10. Nominations of Directors. Only persons who are
nominated in accordance with the procedures set forth in the Bylaws
shall be eligible to serve as directors. Nominations of persons
for election to the Board of Directors of the Corporation may be
made at a meeting of shareholders (a) by or at the direction of the
Board of Directors or (b) by any shareholder of the Corporation who
is a shareholder of record at the time of giving of notice provided
for in this Section 2.10, who shall be entitled to vote for the
election of directors at the meeting and who complies with the
notice procedures set forth in this Section 2.10. Such
nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less than
60 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
or such public disclosure was made. Such shareholder's notice
shall set forth (a) as to each person whom the shareholder proposes
to nominate for election or reelection as a director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (b) as
to the shareholder giving the notice (i) the name and address, as
they appear on the Corporation's books, of such shareholder and
(ii) the class and number of shares of the Corporation which are
beneficially owned by such shareholder. At the request of the
Board of Directors, any person nominated by the Board of Directors
for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee.
No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section 2.10. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures
prescribed by the Bylaws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of this
Section 2.10, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this Section.
Section 2.11. Business. At any meeting of the shareholders, only
such business shall be conducted as shall have been brought before
the meeting (a) by or at the direction of the Board of Directors or
(b) by any shareholder of the Corporation who is a shareholder of
record at the time of giving of the notice provided for in this
Section 2.11, who shall be entitled to vote at such meeting and who
complies with the notice procedures set forth in this section 2.11.
For business to be properly brought before a shareholder 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 to or mailed and
received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must
be received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. A shareholder's
notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting, (b) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business,
(c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder and (d) any material interest
of the shareholder in such business. Notwithstanding anything in
the Bylaws to the contrary, no business shall be conducted at a
shareholder meeting except in accordance with the procedures set
forth in this Section 2.11. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in
accordance with the provisions of the Bylaws, and if he should so
determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.11, a
shareholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in
this Section.
ARTICLE III
Directors
Section 3.1. Number and Election. The property and business of
the Corporation shall be managed by its Board of Directors. The
number of directors which shall constitute the whole Board shall be
not more than 20 and not less than three. The Board of Directors
shall from time to time by a vote of a majority of the directors
then in office fix within the maximum and minimum the number of
directors to constitute the Board. Except as provided in Section
3.2 of these Bylaws, the directors shall be elected at the annual
meeting of shareholders, or at any adjournment thereof, and each
director shall be elected and shall hold office in the manner
described in Section 3.12 hereof. Directors need not be
shareholders of the Corporation.
Section 3.2. Resignations and Vacancies. Any director may resign
at any time by giving written notice to the Chairman or Secretary
of 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. If,
at any time other than the annual meeting of shareholders, any
vacancy occurs in the Board of Directors caused by resignation,
death, retirement, disqualification or removal from office of any
director or otherwise, or any new directorship is created by an
increase in the number of directors pursuant to Section 3.1 of the
Bylaws, a majority of the directors then in office, though less
than a quorum, may choose a successor, or fill the newly created
directorship, and the director so chosen shall hold office until
the expiration of the term of office of the class of directors to
which such director is appointed and until a successor shall be
duly elected and qualified, unless sooner displaced.
Section 3.3. Place of Meetings. Meetings of the Board of
Directors may be held at such place or places, within or without
the State of Oklahoma, as may be designated by the person or
persons calling such meetings.
Section 3.4. Annual Meeting. A meeting of the Board of Directors,
to be known as the annual meeting, shall be held following and on
the same day as the meeting of shareholders at which such Board of
Directors is elected. This meeting shall be held for the purpose
of electing the officers of the Corporation and for transacting any
other business that may properly come before the meeting. No
notice of this annual meeting other than these Bylaws shall be
necessary in order to legally constitute the meeting, provided a
quorum shall be present.
Section 3.5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as the Chairman or the Board
of Directors may from time to time determine.
Section 3.6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman and shall be called by the
Secretary at the request of any two directors, to be held at such
time and place, either within or without the State of Oklahoma, as
shall be designated by the call and specified in the notice of such
meeting; and notice thereof shall be given as provided in Section
3.7 of these Bylaws.
Section 3.7. Notice. Except as otherwise prescribed by statute,
written notice of the time and place of each regular or special
meeting of the Board of Directors shall be given at least two days
prior to the time of holding the meeting. Any director may waive
notice of any meeting. The attendance of a director at any meeting
shall constitute a waiver of notice of such meeting, except where
a director expressly objects to the transaction of any business
because the meeting is not lawfully called or convened and such
objection is made prior to the transaction of such business.
Neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in any
notice, or waiver of notice, of such special meeting except that
notice shall be given of any proposed amendment by these Bylaws or
with respect to any other matter where notice is required by
statute. (See also Article IV).
Section 3.8. Quorum. At each meeting of the Board of Directors,
the presence of not less than 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 of Directors, except as may be otherwise specifically
provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws. If a quorum shall not be present at
any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.9. Committees of Directors. The Board of Directors may,
by resolution passed by a majority of the whole board, designate
one or more committees, each committee to consist of two or more
directors of the Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business or affairs of the
Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. The
Board of Directors may designate one or more directors as alternate
members of any such committee, who may replace any absent or
disqualified member thereof. Each committee shall keep regular
minutes of its meetings and report the same to the Board of
Directors when required by the Board.
Section 3.10. Fees and Compensation of Directors. Directors may
receive stated salary for their services as such; or, by resolution
of the Board of Directors, a fixed fee, with or without expenses of
attendance, may be allowed for attendance at each regular or
special meeting of the Board. Members of the board shall be
allowed their reasonable traveling expenses when actually engaged
in the business of the Corporation, to be audited and allowed as in
other cases of demands against the Corporation. Members of
standing or special committees may be allowed like fees and
expenses for attending committee meetings. Nothing herein
contained shall be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor.
Section 3.11. Action Without a Meeting. Any action which might be
taken at a meeting of the Board of Directors may be taken without
a meeting if a record or memorandum thereof be made in writing and
signed by all the members of the board, and such writing is filed
with the minutes of the proceedings of the board.
Section 3.12. Classes of Directors, and Terms of Office. The
Board of Directors shall be divided into three classes as nearly as
equal in number as possible with the term of office of one class
expiring each year. Directors shall be chosen by a plurality of
votes cast in an election for directors. The class of directors
elected at the annual meeting of shareholders shall be elected for
three-year terms. When the number of directors is changed, any
newly created directorship or any decrease in directorships shall
be so apportioned among the classes as to make all classes as
nearly equal in number as possible. When the number of directors
is increased by the Board of Directors, there shall be no
classification of the additional directors until the next annual
meeting of shareholders. Subject to the foregoing, at each annual
meeting of shareholders, the successors to the class of directors
whose terms shall then expire shall be elected to hold office for
a term expiring at the third succeeding annual meeting.
ARTICLE IV
Notices
Section 4.1. Manner of Notice. Whenever under the provisions of
the statutes or the Corporation's Certificate of Incorporation or
these Bylaws notice is required to be given to any director, member
of any committee designated by the Board of Directors pursuant to
authority conferred by Section 3.9 of these Bylaws, or shareholder,
it shall be given in writing by depositing it, in a sealed
envelope, in the mails, postage prepaid, addressed (or by
delivering it to a telegraph company, charges prepaid, for
transmission) to such director, member or shareholder either at the
address of such director, member or shareholder as it appears on
the books of the Corporation or, in the case of such a director or
member, at his business address; and such notice shall be deemed to
be given at the time when it is thus deposited in the mails (or
delivered to the telegraph company).
Section 4.2. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or the Corporation's
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. Any shareholder or director who attends any
meeting, annual, regular or special, shall be conclusively presumed
to have waived notice thereof, except where such shareholder or
director expressly objects to the transaction of any business
because the meeting is not lawfully called or convened and such
objection is made prior to the transaction of such business.
ARTICLE V
Officers
Section 5.1. Officers and Official Positions. The Board of
Directors may elect a Chairman of the Board. The office of
Chairman of the Board may be named Chairman if so designated by the
Board of Directors. The Board may elect a President, one or more
Vice Presidents, a Secretary, a Treasurer, a Controller, such
Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers and such other officers as the Board of Directors shall
determine. Any two or more offices may be held by the same person.
None of the officers need be a director or a shareholder of the
Corporation or a resident of the State of Oklahoma.
Section 5.2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at
the annual meeting of the Board. If the election of officers shall
not be held at such meeting of the board, such election shall be
held at a regular or special meeting of the Board of Directors as
soon thereafter as may be convenient. Each officer shall hold
office until a successor is chosen and qualified or until death, or
until such officer shall resign, or shall have been removed in the
manner hereinafter provided.
Section 5.3. Removal and Resignation. Any officer may be removed,
either with or without cause, by a majority of the directors at the
time in office at any regular or special meeting of the Board; but
such removal shall be without prejudice to the contract rights, if
any, of such person so removed. Any officer may resign at any time
by giving written notice to the Chairman or Secretary of 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.
Section 5.4. Vacancies. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the
unexpired portion of the term by the Board of Directors at any
regular or special meeting of the Board.
Section 5.5. Chief Executive Officer. If the Board of Directors
has elected a Chairman, it may designate the Chairman as the Chief
Executive Officer of the Corporation. If no Chairman has been
elected, or in the Chairman's absence or inability to act or if no
such designation has been made by the Board of Directors, the
President or such other designee as the Board of Directors shall
determine shall act as the Chief Executive Officer of the
Corporation. The Chief Executive Officer shall (i) have the
overall supervision of the business of the Corporation and shall
direct the affairs and policies of the Corporation, subject to any
directions which may be given by the Board of Directors, (ii) shall
have authority to delegate special powers and duties to specified
officers, so long as such designations shall not be inconsistent
with the statutes or the Corporation's Certificate of Incorporation
or these Bylaws or action of the Board of Directors and (iii) shall
in general have all other powers and shall perform all other duties
incident to the chief executive officer of a corporation and such
other powers and duties as may be prescribed by the Board of
Directors from time to time.
The Chairman, if one has been elected, shall preside at all
meetings of the shareholders, and of the Board of Directors. The
Chairman may sign with the Secretary or an Assistant Secretary,
certificates for shares of stock of the Corporation, the issuance
of which shall have been duly authorized by the Board of Directors.
Section 5.6. President. (a) If the Board of Directors has elected
a Chairman and designated such officer as the Chief Executive
Officer of the Corporation, the President shall be subject to the
control of the Board of Directors and the Chairman, and shall have
such powers and perform such duties as from time to time may be
assigned by the Board of Directors or the Chairman.
(b) If the Board of Directors has not elected a
Chairman, or, if one has been elected and has not been designated
the Chief Executive Officer of the Corporation, then the President
or such other person as may be designated by the Board of Directors
shall be the Chief Executive Officer of the Corporation with the
powers and duties provided in Section 5.5 of these Bylaws.
(c) In any event, the President shall have power to
execute, and shall execute, deeds, mortgages, bonds, contracts or
other instruments of the corporation except where required or
permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent
of the Corporation. The President may sign with the Secretary or
an Assistant Secretary, certificates for shares of stock of the
Corporation, the issuance of which shall have been duly authorized
by the Board of Directors, and shall vote, or give a proxy to any
other person to vote, all shares of stock of any other corporation
standing in the name of the Corporation.
Section 5.7. Vice Presidents. In the absence of the President, or
in the event of his inability or refusal to act, the Vice President
designated by the Board of Directors or the Chief Executive
Officer, shall perform all 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 other duties, not inconsistent
with the statutes or the Corporation's Certificate of Incorporation
or these Bylaws or action of the Board of Directors, as from time
to time may be prescribed for them, respectively, by the Chief
Executive Officer. The Board of Directors may, from time to time,
designate certain of the Vice Presidents as Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice
Presidents or such other designation as the Board of Directors
deems appropriate. The duties and areas of responsibility of the
various Vice Presidents shall be determined by the Chairman and the
Board of Directors, to the extent not inconsistent with applicable
statutes or these Bylaws.
Section 5.8. Secretary. The Secretary shall: (a) keep the minutes
of the meetings of the shareholders, the Board of Directors and
committees of directors, in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with
the provisions of these Bylaws or as required by law; (c) have
charge of the corporate records and of the seal of the Corporation;
(d) affix the seal of the Corporation or a facsimile thereof, or
cause it to be affixed, to all certificates for shares prior to the
issuance thereof and to all documents the execution of which on
behalf of the Corporation under its seal is duly authorized by the
Board of Directors or otherwise in accordance with the provisions
of these Bylaws; (e) keep a register of the post office address of
each shareholder, director and committee member, which shall from
time to time be furnished to the Secretary by such shareholder,
director or member; (f) sign with the Chairman or President
certificates for shares of stock of the Corporation, the issuance
of which shall have been duly authorized by resolution of the Board
of Directors; (g) have general charge of the stock transfer books
of the Corporation; and (h) in general, perform all duties incident
to the office of Secretary and such other duties as from time to
time may be assigned by the Chairman, the President or by the Board
of Directors. The Secretary may delegate such details of the
performance of duties of the office of Secretary as may be
appropriate in the exercise of reasonable care to one or more
persons, but shall not thereby be relieved of responsibility for
the performance of such duties.
Section 5.9. Chief Financial Officer. The Chief Financial Officer
shall be a Vice President, elected and designated as Chief
Financial Officer, who shall: (a) be responsible to the Board of
Directors for the receipt, custody and disbursement of all funds
and securities of the Corporation; (b) receive and give receipts
for moneys due and payable to the Corporation from any source
whatsoever and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories as
shall from time to time be selected in accordance with the
provisions of Section 6.4 of these Bylaws; (c) disburse the funds
of the Corporation as ordered by the Board of Directors or the
Chief Executive Officer or as required in the ordinary conduct of
the business of the Corporation; (d) render to the Chief Executive
Officer or the Board of Directors, upon request, an account of all
transactions as Chief Financial Officer and on the financial
condition of the Corporation; and (e) in general, perform all the
duties incident to the office of Chief Financial Officer and such
other duties as from time to time may be assigned by the Chairman,
the President, the Board of Directors or these Bylaws. In the
event there be no Chief Financial Officer, the Board of Directors
may designate any officer to perform the duties of the Chief
Financial Officer.
Section 5.10. Treasurer. The Treasurer shall have such duties and
responsibilities as may, from time to time, be designated by the
Board of Directors, the Chairman and the Chief Financial Officer.
Section 5.11. Controller. The Controller shall be the chief
accounting officer of the Corporation, and shall be responsible to
the Board of Directors and the Chief Financial Officer for internal
accounting and control of the books and records of the Corporation.
Such responsibility includes preparation of all financial reports,
tax returns and such other duties as may be assigned by the Board
of Directors or the Chief Financial officer.
ARTICLE VI
Contracts, Borrowings, Checks and Deposits
Section 6.1. Contracts and Other Instruments. The Board of
Directors may authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 6.2. Borrowings. No borrowings shall be contracted on
behalf of the corporation, or any division thereof, and no evidence
of indebtedness shall be issued in the name of the Corporation,
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 6.3. Checks, Drafts, etc. All checks, demands, drafts or
other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation, shall be signed
by such officer or officers, agent or agents of the Corporation,
and in such manner, as shall from time to time be determined by the
Board of Directors.
Section 6.4. Deposits. All funds of the Corporation, not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Chief Financial Officer or Treasurer may
select.
Section 6.5. Investments. The Board of Directors may authorize
any officer or officers, agent or agents of the Corporation, to
invest the funds of the Corporation in obligations of the Federal
government or any agency thereof or of any state government or any
agency thereof, commercial paper, real estate, equity securities or
debt obligations of any other corporation and such other
investments as the Board of Directors may approve, and such
authority may be general or confined to specific instances.
ARTICLE VII
Certificates of Stock and Their Transfer
Section 7.1. Certificates of Stock. The certificates of stock of
the Corporation shall be in such form as may be determined by the
Board of Directors, shall be numbered and shall be entered in the
books of the Corporation as they are issued. They shall exhibit
the name of the Corporation, the state of incorporation, the name
of the registered holder, the number of shares and the par value
thereof and shall be signed by the Chairman or President and by the
Secretary or an Assistant Secretary. The signature of any such
officer may be facsimile. In case any such officer who shall have
signed or whose facsimile signature has thus been used on any such
certificate shall cease to be such officer, whether because of
death, resignation or otherwise, before such certificate has been
delivered by the Corporation, such certificate may nevertheless be
delivered by the Corporation, as though the person whose facsimile
signature has been used thereon had not ceased to be such officer.
All certificates properly surrendered to the Corporation for
transfer shall be cancelled and no new certificate shall be issued
to evidence transferred shares until the former certificate for at
least a like number of shares shall have been surrendered and
cancelled and the Corporation reimbursed for any applicable taxes
on the transfer, except that in the case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such
terms, and with such indemnity (if any) to the Corporation, as the
Board of Directors may prescribe specifically or in general terms
or by delegation to a transfer agent for the Corporation. (See
Section 7.2.)
Section 7.2. Lost or Destroyed Certificates. The Board of
Directors in individual cases, or by delegation to a transfer
agent, 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 or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate
of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificates,
or his legal representative, to advertise the same in such manner
as it shall require and/or 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 or destroyed.
Section 7.3. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and
upon payment of applicable taxes with respect to such transfer, it
shall be the duty of the Corporation, subject to such rules and
regulations as the Board of Directors may from time to time deem
advisable concerning the transfer and registration of certificates
for shares of stock of the Corporation, to issue a new certificate
to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Transfers of shares shall
be made only on the books of the Corporation on behalf of the
registered holder thereof or by his attorney or successor duly
authorized as evidenced by documents filed with the Secretary or
transfer agent of the Corporation.
Section 7.4. Stockholders of Record. 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 or shares notwithstanding any express or other notice
thereof, except as otherwise provided by the laws of Oklahoma.
ARTICLE VIII
General Provisions
Section 8.1. Fiscal Year. The fiscal year of the Corporation
shall be the 52 or 53 week period ending on the last Saturday in
December in each year and beginning on the following Sunday.
Section 8.2. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, and the words "Corporate Seal"
and "Oklahoma" or an abbreviation thereof; and it shall otherwise
be in the form approved by the Board of Directors. Such seal may
be used by causing it, or a facsimile thereof, to be impressed or
affixed or otherwise reproduced.
Section 8.3. Indemnification. (a) The Corporation shall
indemnify any director or officer of the Corporation who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Corporation) by reason of the fact that such
person 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, partnership, joint venture or other
enterprise against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the
director or officer acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that such conduct was unlawful.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that the
person did not act in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the
Corporation and with respect to any criminal action or proceeding
have reasonable cause to believe that such conduct was unlawful.
(b) The Corporation shall indemnify any director or
officer of the Corporation who was or is a party or is threatened
to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person 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, partnership, joint venture, trust or other enterprise
against expenses (including attorney's fees) actually and
reasonably incurred in connection with the defense or settlement of
such action or suit if the director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the
best interest of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or
misconduct in performance of duty to the Corporation unless and
only to the extent that the court in which action or suit was
brought shall determine, upon application, that despite the
adjudication of liability, but in the view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the
Corporation as authorized herein.
(d) The Corporation may purchase (upon resolution duly
adopted by the Board of Directors) and maintain insurance on behalf
of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against such person and incurred in any such capacity, or arising
out of the status as such, whether or not the Corporation would
have the power to indemnify the director or officer against such
liability.
(e) To the extent that a director or officer of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to herein or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred in connection therewith.
(f) Every director or officer shall be entitled, without
demand upon the Corporation or any action by the Corporation, to
enforce such person's right to such indemnity in an action at law
against the Corporation. The right of indemnification hereinabove
provided shall not be deemed exclusive of any rights to which any
such person may now or hereafter be otherwise entitled and
specifically, without limiting the generality of the foregoing,
shall not be deemed exclusive of any rights pursuant to statute or
otherwise, of any such person in any such action, suit or
proceeding to have assessed or allowed against the Corporation or
otherwise, costs and expenses incurred therein or in connection
therewith or any part thereof.
(g) Any indemnification hereinabove provided, unless
ordered by a court, shall be made by the Corporation only as
authorized in a specific case because the Corporation has
determined that the indemnitee has met the requisite standards of
conduct as set forth in sub-sections (a) and (b) above. Such
determination is to be made by the Board of Directors by majority
vote of a quorum consisting of directors who are not parties to
such action, suit or proceeding; or if such a quorum is not
obtainable, or even if obtainable should a quorum of disinterested
directors so direct, by independent legal counsel in a written
opinion; or by the shareholders.
ARTICLE IX
Amendments
Section 9.1. In General. Any provision of these Bylaws may be
altered, amended or repealed from time to time by the affirmative
vote of a majority of the stock having voting power present in
person or by proxy at any annual or special meeting of shareholders
at which a quorum is present, if notice of the proposed alteration,
amendment or repeal is contained in the notice of such meeting, or
by the affirmative vote of a majority of the directors then
qualified and acting at any meeting of the Board at which a quorum
is present, if notice of the proposed alteration, amendment or
repeal has been given to each director.