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Exhibit 3.7
AMENDED AND RESTATED
BYLAWS
OF
PETCO ANIMAL SUPPLIES, INC.
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TABLE OF CONTENTS
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PAGE
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ARTICLE I OFFICES.................................................................................................1
SECTION 1. REGISTERED OFFICE......................................................................1
SECTION 2. OTHER OFFICES..........................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...............................................................................1
SECTION 1. PLACE OF MEETINGS......................................................................1
SECTION 2. ANNUAL MEETING OF STOCKHOLDERS.........................................................1
SECTION 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF..........................................1
SECTION 4. VOTING.................................................................................2
SECTION 5. PROXIES................................................................................2
SECTION 6. SPECIAL MEETINGS.......................................................................2
SECTION 7. NOTICE OF STOCKHOLDER'S MEETINGS.......................................................2
SECTION 8. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.........................................2
SECTION 9. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST.........................................5
SECTION 10. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING...............................5
SECTION 11. INSPECTOR OF ELECTIONS; OPENING AND CLOSING THE POLLS.................................5
ARTICLE III DIRECTORS.............................................................................................5
SECTION 1. THE NUMBER OF DIRECTORS................................................................5
SECTION 2. VACANCIES..............................................................................6
SECTION 3. POWERS.................................................................................6
SECTION 4. PLACE OF DIRECTORS' MEETINGS...........................................................6
SECTION 5. REGULAR MEETINGS.......................................................................6
SECTION 6. SPECIAL MEETINGS.......................................................................7
SECTION 7. QUORUM.................................................................................7
SECTION 8. ACTION WITHOUT MEETING.................................................................7
SECTION 9. TELEPHONIC MEETINGS....................................................................7
SECTION 10. COMMITTEES OF DIRECTORS...............................................................7
SECTION 11. MINUTES OF COMMITTEE MEETINGS.........................................................8
SECTION 12. COMPENSATION OF DIRECTORS.............................................................8
SECTION 13. INDEMNIFICATION.......................................................................8
ARTICLE IV OFFICERS..............................................................................................11
SECTION 1. OFFICERS..............................................................................11
SECTION 2. ELECTION OF OFFICERS..................................................................11
SECTION 3. SUBORDINATE OFFICERS..................................................................11
SECTION 4. COMPENSATION OF OFFICERS..............................................................11
SECTION 5. TERM OF OFFICE; REMOVAL AND VACANCIES.................................................11
SECTION 6. CHAIRMAN OF THE BOARD.................................................................11
SECTION 7. PRESIDENT.............................................................................12
SECTION 8. VICE PRESIDENT........................................................................12
SECTION 9. SECRETARY.............................................................................12
SECTION 10. ASSISTANT SECRETARIES................................................................12
</Table>
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SECTION 11. TREASURER............................................................................13
SECTION 12. ASSISTANT TREASURER..................................................................13
ARTICLE V CERTIFICATES OF STOCK..................................................................................13
SECTION 1. CERTIFICATES..........................................................................13
SECTION 2. SIGNATURES ON CERTIFICATES............................................................13
SECTION 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES....................................13
SECTION 4. LOST CERTIFICATES.....................................................................14
SECTION 5. TRANSFERS OF STOCK....................................................................14
SECTION 6. FIXING RECORD DATE....................................................................14
SECTION 7. REGISTERED STOCKHOLDERS...............................................................14
ARTICLE VI GENERAL PROVISIONS....................................................................................15
SECTION 1. DIVIDENDS.............................................................................15
SECTION 2. PAYMENT OF DIVIDENDS; DIRECTORS' DUTIES...............................................15
SECTION 3. CONTRACTS AND CHECKS..................................................................15
SECTION 4. FISCAL YEAR...........................................................................15
SECTION 5. CORPORATE SEAL........................................................................15
SECTION 6. MANNER OF GIVING NOTICE...............................................................15
SECTION 7. WAIVER OF NOTICE......................................................................16
SECTION 8. ANNUAL STATEMENT......................................................................16
ARTICLE VII AMENDMENT............................................................................................16
SECTION 1. AMENDMENT BY DIRECTORS................................................................16
</Table>
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AMENDED AND RESTATED
BYLAWS
OF
PETCO ANIMAL SUPPLIES, INC.
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of PETCO
Animal Supplies, Inc. (the "Corporation") shall be in the City of Wilmington,
County of New Castle, State of Delaware. The name of the registered agent of the
Corporation at that address is the Corporation Service Company.
Section 2. OTHER OFFICES. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall
be held at any place within or outside the State of Delaware designated by the
Board of Directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the Corporation.
Section 2. ANNUAL MEETING OF STOCKHOLDERS. The annual meeting
of stockholders shall be held each year on a date and 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. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF.
Except as otherwise provided by law or by the Certificate of Incorporation, the
holders of a majority of the voting power of the outstanding shares of the
Corporation entitled to vote generally in the election of directors, represented
in person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series
voting separately as a class or series, the holders of a majority of the voting
power of the shares of such class or series shall constitute a quorum for the
transaction of such business. A quorum, once established, shall not be broken by
the withdrawal of enough votes to leave less than a quorum and the votes present
may continue to transact business until adjournment. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
chairman of the meeting or a majority of the voting stock represented in person
or by proxy may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented (or,
in the case of specified business to be voted on by a class or series, the
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chairman of the meeting or a majority of the shares of such class or series so
represented may adjourn the meeting with respect to such specified business). At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote thereat.
Section 4. VOTING. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy and entitled to vote thereon shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of law, or the Certificate of Incorporation, or these Bylaws,
a different vote is required in which case such express provision shall govern
and control the decision of such question. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the Corporation on the record date set by the Board of Directors as provided
in Article V, Section 6 hereof. All elections shall be had and all questions
decided by a plurality vote, except as otherwise expressly provided for herein.
Section 5. PROXIES. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting.
Section 6. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose, or purposes, unless otherwise prescribed by law
or by the Certificate of Incorporation, may be called by the Chairman of the
Board or the President and shall be called by the President or the Secretary at
the request in writing of the Board of Directors. Notwithstanding the foregoing,
whenever holders of one or more classes or series of preferred stock of the
Corporation ("Preferred Stock") shall have the right, voting separately as a
class or series, to elect directors, such holders may call special meetings of
such holders pursuant to the certificate of designation for such classes or
series. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 7. NOTICE OF STOCKHOLDER'S MEETINGS. Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place,
date and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Such further notice shall be given
as may be required by law. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 8. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (A) pursuant to the
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Corporation's notice of meeting (or any supplement thereto), (B) by or at the
direction of the Board of Directors or (C) by any stockholder of the Corporation
who was a stockholder of record of the Corporation at the time the notice
provided for in this Section 8 is delivered to the Secretary of the Corporation,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 8.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(1) of this Section 8, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive office of the Corporation not later than the close of business on the
ninetieth day nor earlier than the close of business on the one hundred
twentieth day prior to the first anniversary of the preceding year's annual
meeting; PROVIDED, HOWEVER, that in the event that the date of the annual
meeting is more than thirty days before or more than seventy days after such
anniversary date, notice by the stockholder must be so delivered not earlier
than the close of business on the one hundred twentieth day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
day prior to such annual meeting or the tenth 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 or
postponement of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth: (A) as to each person whom the stockholder 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 in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14a-11 thereunder (and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made, and in the event
that such business includes a proposal to amend the Bylaws of the Corporation,
the language of the proposed amendment; and (C) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (ii) the class and number
of shares of capital stock of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner, (iii) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination and (iv) a representation whether
the stockholder or the beneficial owner, if any, intends or is part of a group
which intends to (y) deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporation's outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or (z)
otherwise solicit proxies from stockholders in support of such proposal or
nomination. The Corporation may require any proposed nominee to furnish such
other information as it may reasonably require to determine the eligibility of
such proposed nominee to serve as a director of the Corporation.
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(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 8 to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation at an
annual meeting is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least one hundred days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 8 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive office of the
Corporation not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time the notice provided for
in this Section 8 is delivered to the Secretary of the Corporation, who shall be
entitled to vote at the meeting and upon such election and who complies with the
notice procedures set forth in this Section 8. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (a)(2) of this
Section 8 shall be delivered to the Secretary at the principal executive office
of the Corporation not earlier than the close of business on the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of the ninetieth day prior to such special meeting, or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(c) GENERAL. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 8 shall be eligible to
be elected at an annual or special meeting of stockholders of the Corporation to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 8. Except as otherwise provided by law
or the Certificate of Incorporation, the chairman of the meeting shall have the
power and duty to (A) determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 8 and (B) if any
proposed nomination or business is not in compliance with this Section 8
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicits (or is part of a group which
solicits), or fails to so solicit (as the case may be), proxies in support of
such stockholder's proposal in compliance with such stockholder's representation
required by clause (C)(iv) of Section (a)(2) of this Section 8), to declare that
such defective nomination shall be disregarded or that such proposed business
shall not be transacted.
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(2) For purposes of this Section 8, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable 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 Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
8, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 8. Nothing in this Section 8 shall be deemed
to affect any rights (A) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (B) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 9. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The
officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 10. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may not be taken without a meeting.
Section 11. INSPECTOR OF ELECTIONS; OPENING AND CLOSING THE
POLLS. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the General Corporation Law of the State of
Delaware.
ARTICLE III
DIRECTORS
Section 1. THE NUMBER OF DIRECTORS. The number of directors
which shall constitute the whole Board of Directors shall be not less than five
nor more than fifteen, and may be changed by an amendment to these Bylaws duly
adopted by the Board of Directors or by the
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stockholders as provided under Section 1 of Article VII hereof, or by a duly
adopted amendment to the Certificate of Incorporation. Subject to the rights of
the holders of any series of Preferred Stock, or any other series or class of
stock as set forth in the Certificate of Incorporation, to elect directors under
specified circumstances, the actual number of directors shall be fixed from time
to time by resolution adopted by a majority of the whole Board of Directors. The
directors need not be stockholders. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified; PROVIDED, HOWEVER, that unless otherwise restricted by the
Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, only for cause, from the Board of Directors at any
meeting of stockholders by not less than a majority of the outstanding stock of
the Corporation then entitled to vote generally in the election of directors,
voting together as a single class.
Section 2. VACANCIES. Subject to the rights of the holders of
any series of Preferred Stock, or any other series or class of stock as set
forth in the Certificate of Incorporation, to elect additional directors under
specified circumstances, vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. The directors so
chosen shall hold office until the next annual election of directors and until
their successors are duly elected and shall qualify, unless sooner displaced. No
decrease in the number of authorized directors constituting the whole Board of
Directors shall shorten the term of any incumbent director. If there are no
directors in office, then an election of directors may be held in the manner
provided by law. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board of Directors (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. POWERS. The property and business of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. PLACE OF DIRECTORS' MEETINGS. The directors may
hold their meetings and have one or more offices, and keep the books of the
Corporation outside of the State of Delaware.
Section 5. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors.
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Section 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President and shall
be called by the President or the Secretary on the written request of two
directors, unless the Board of Directors consists of only one director, in which
case special meetings shall be called by the President or Secretary in like
manner or on like notice on the written request of the sole director. Notice of
any special meeting shall be given to each director at his business or residence
in writing or by telegram or by telephone communication. If mailed, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least five days before such
meeting. If by telegram, such notice shall be deemed adequately delivered when
the telegram is delivered to the telegraph company at least twenty-four hours
before such meeting. If by facsimile transmission, such notice shall be
transmitted at least twenty-four hours before such meeting. If by telephone, the
notice shall be given at least twelve hours prior to the time set for the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these Bylaws as provided under
Section 1 of Article VII hereof. A meeting may be held at any time without
notice if all the directors are present (except as otherwise provided by law) or
if those not present waive notice of the meeting in writing, either before or
after such meeting.
Section 7. QUORUM. At all meetings of the Board of Directors a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the vote 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 law, by the Certificate of Incorporation or by these
Bylaws. If a quorum shall not be present at any meeting of the Board 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. If only one director is authorized, such sole director shall
constitute a quorum.
Section 8. ACTION WITHOUT MEETING. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 9. TELEPHONIC MEETINGS. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
Section 10. COMMITTEES OF DIRECTORS. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate one or more committees, each such committee to consist of one or more
of the directors of the Corporation.
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The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 11. MINUTES OF COMMITTEE MEETINGS. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
COMPENSATION OF DIRECTORS
Section 12. COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
INDEMNIFICATION
Section 13. INDEMNIFICATION. (a) The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person 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 he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his 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
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presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person 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 he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of the Corporation shall be successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in paragraphs (a) and (b), or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director or officer in defending
any civil or criminal, administrative or investigative, action, suit or
proceeding shall 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 such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Section 13. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 13 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under
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any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. The Corporation's obligation, if
any, to indemnify or to advance expenses to those seeking indemnification or
advancement of expenses who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or nonprofit
enterprise.
(g) The Board of Directors may authorize, by a vote of a
majority of a quorum of the Board of Directors, the Corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Section 13.
(h) For the purposes of this Section 13, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section 13 with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
(i) For purposes of this Section 13, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
Section 13.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 13 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Any repeal or modification
of the foregoing provisions of this Section 13 shall not adversely affect any
right or protection hereunder of any person seeking indemnification or
advancement of expenses in respect of any act or omission occurring prior to the
time of such repeal or modification.
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ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of this corporation shall be
chosen by the Board of Directors and shall include a Chairman of the Board, a
President, a Secretary and a Treasurer. The Chairman of the Board shall be
chosen from the directors. The Corporation may also have at the discretion of
the Board of Directors such other officers as are desired, including one or more
Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and
such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article IV. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise provide.
Section 2. ELECTION OF OFFICERS. The Board of Directors, at
its first meeting after each annual meeting of stockholders, shall choose the
officers of the Corporation.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
Section 4. COMPENSATION OF OFFICERS. The salaries of all
officers and agents of the Corporation shall be fixed by the Board of Directors.
Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES. The officers
of the Corporation shall hold office until their successors are chosen and
qualify in their stead or until their death or resignation. Any officer elected
or appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. No elected officer
shall have any contractual rights against the Corporation for compensation by
virtue of such election beyond the date of the election of his successor, his
death, his resignation or his removal, whichever event shall first occur, except
as otherwise provided in an employment contract or an employee plan. If the
office of any officer or officers becomes vacant for any reason, the vacancy
shall be filled by the Board of Directors.
CHAIRMAN OF THE BOARD AND VICE CHAIRMAN OF THE BOARD
Section 6. CHAIRMAN OF THE BOARD. (a) The Chairman of the
Board shall, if present, preside at all meetings of the stockholders and 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
these Bylaws.
(b) VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board
shall be chosen from the directors. Subject to the supervisory powers as may be
given by the Board of Directors to the Vice Chairman of the Board, the Vice
Chairman of the Board shall, subject to the control of the Board of Directors
and in the absence of the Chairman of the Board, assume the powers and duties
described in Section 6(a) of this Article IV. In the absence of the Chairman of
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the Board, he shall preside at all meetings of stockholders and at all meetings
of the Board of Directors. He shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
PRESIDENT
Section 7. PRESIDENT. Subject to such supervisory powers as
may be given by the Board of Directors to the Chairman of the Board, the
President shall, subject to the control of the Board of Directors and in the
absence of the Chairman of the Board and the Vice Chairman, assume the powers
and duties prescribed in Section 6 of this Article IV. In the absence of the
Chairman of the Board and the Vice Chairman, he shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors. He shall be an
ex-officio member of all committees and shall have the general powers and duties
of management usually vested in the office of President of corporations, and
shall have such other powers and duties as may be prescribed by the Board of
Directors or these Bylaws.
VICE PRESIDENTS
Section 8. VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
SECRETARY AND ASSISTANT SECRETARY
Section 9. SECRETARY. The Secretary shall attend all sessions
of the Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose;
and shall perform like duties for the standing committees when required by the
Board of Directors. He shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or these Bylaws. In case
of his absence or refusal or neglect so to do, any such notice may be given by
any person thereunto directed by the Chairman of the Board or the President, or
by the Board of Directors, upon whose request the meeting is called as provided
in these Bylaws. He shall keep in safe custody the seal of the Corporation, and
when authorized by the Board of Directors, affix the same to any instrument
requiring it, and when so affixed it shall be attested by his signature or by
the signature of an Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 10. ASSISTANT SECRETARIES. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board of Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
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TREASURER AND ASSISTANT TREASURER
Section 11. TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, the Chairman of the Board or the President, taking
proper vouchers for such disbursements, and shall render to the Board of
Directors, at its regular meetings, or when the Board of Directors, the Chairman
of the Board or the President so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, he shall give the Corporation a bond, in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors, for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 12. ASSISTANT TREASURER. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors, or if there be no such determination, the
Assistant Treasurer designated by the Board of Directors, shall, in the absence
or disability of the Treasurer, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. CERTIFICATES. Every holder of stock of the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the Chairman or Vice Chairman of the Board, or the President
or a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. SIGNATURES ON CERTIFICATES. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent, or registrar at
the date of issue.
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES.
If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, PROVIDED that, except as otherwise provided in Section
202 of the General Corporation Law of the State of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, a statement
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that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 4. LOST CERTIFICATES. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
TRANSFERS OF STOCK
Section 5. 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,
assignation or authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 6. FIXING RECORD DATE. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or 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 change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders 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.
REGISTERED STOCKHOLDERS
Section 7. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
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ARTICLE VI
GENERAL PROVISIONS
DIVIDENDS
Section 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. PAYMENT OF DIVIDENDS; DIRECTORS' DUTIES. Before
payment of any dividend there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve.
CONTRACTS AND CHECKS
Section 3. CONTRACTS AND CHECKS. Except as otherwise required
by law, the Certificate of Incorporation or these Bylaws, any contracts or other
instruments, including checks or demands for money and notes of the Corporation,
may be executed and delivered in the name and on the behalf of the Corporation
by such officer or officers of the Corporation as the Board of Directors may
from time to time direct. Such authority may be general or confined to specific
instances as the Board of Directors may determine. The Chairman of the Board,
the President or any Vice President may execute bonds, contracts, deeds, leases
and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors or
the Chairman of the Board, the President or any Vice President of the
Corporation may delegate contractual powers to others under his jurisdiction, it
being understood, however, that any such delegation of power shall not relieve
such office of responsibility with respect to the exercise of such delegated
power.
FISCAL YEAR
Section 4. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
SEAL
Section 5. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
NOTICES
Section 6. MANNER OF GIVING NOTICE. Whenever, under the
provisions of law or of the Certificate of Incorporation or of these Bylaws,
notice is required to be given to any
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director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram, facsimile transmission or telephone
communication.
Section 7. WAIVER OF NOTICE. Whenever any notice is required
to be given under the provisions of law or of the Certificate of Incorporation
or of 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. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the stockholders of the Board of
Directors need be specified in any waiver of notice of such meeting.
ANNUAL STATEMENT
Section 8. ANNUAL STATEMENT. The Board of Directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the Corporation.
ARTICLE VII
AMENDMENT
Section 1. AMENDMENT BY DIRECTORS. These Bylaws may be
altered, amended or repealed or new Bylaws may be adopted by the Board of
Directors, when such power is conferred upon the Board of Directors by the
Certificate of Incorporation or by the affirmative vote of not less than 66 2/3%
of the total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
Bylaws be contained in the notice of such special meeting.
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