EXHIBIT 3.1
R
R NABISCO HOLDINGS CORP.
BY-LAWS
As Amended Effective December 5, 1995
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders of the
Corporation shall be held at such place either within or without the State of
Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings. Annual meetings of
stockholders shall be held, at a date, time and place fixed by the Board of
Directors and stated in the notice of meeting, to elect a Board of Directors
and to transact such other business as may properly come before the meeting.
Special meetings of stockholders may be called by the Chairman or the Chief
Executive Officer for any purpose, shall be called by the Chairman, the Chief
Executive Officer or the Secretary if directed by the Board of Directors, and
may not be called by or at the request of any other person.
Section 3. Notice. Except as otherwise provided by law or by the
Certificate of Incorporation, written notice shall be given to each
stockholder entitled to vote at least 10 and not more than 60 days before each
meeting of stockholders, such notice to include the time, date and place of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called.
Section 4. Quorum. At any meeting of stockholders, the holders of
record, present in person or by proxy, of a majority of the Corporation's
stock issued and outstanding and entitled to vote shall constitute a quorum
for the transaction of business, except as otherwise provided by law or by the
Certificate of Incorporation. In the absence of a quorum, any officer
entitled to preside at or to act as secretary of the meeting shall have power
to adjourn the meeting from time to time until a quorum is present.
Section 5. Conduct of Meeting and Order of Business. The Chairman
or, at the Chairman's request, the Chief Executive Officer, shall act as
chairman at all meetings of stockholders. The Secretary of the Corporation
or, in his or her absence, an Assistant Secretary shall act as secretary at
all meetings of stockholders. The chairman of the meeting shall have the
right and authority to determine and maintain the rules, regulations and
procedures for the proper conduct of the meeting, including but not limited to
restricting entry to the meeting after it has commenced, maintaining order and
the safety of those in attendance, opening and closing the polls for voting,
dismissing business not properly submitted, and limiting time allowed for
discussion of the business of the meeting.
Business to be conducted at annual meetings of stockholders shall be
limited to that properly submitted to the meeting either by or at the
direction of the Board of Directors or by any stockholder of the Corporation
who shall be entitled to vote at such meeting and who complies with the notice
requirements set forth in Section 6 of this Article I. If the chairman of the
meeting shall determine that any business was not properly submitted in
accordance with the terms of Section 6 of this Article I, he or she shall
declare to the meeting that such business was not properly submitted and would
not be transacted at that meeting.
Section 6. Advance Notice of Stockholder Proposals. In order to
properly submit any business to an annual meeting of stockholders, a
stockholder must give timely notice in writing to the Secretary of the
Corporation. To be considered timely, a stockholder's notice must be
delivered either in person or by United States certified mail, postage
prepaid, and received at the principal executive offices of the Corporation
(a) not less than 120 days nor more than 150 days before the first anniversary
date of the Corporation's proxy statement in connection with the last annual
meeting of stockholders or (b) if no annual meeting was held in the previous
year or the date of the applicable annual meeting has been changed by more
than 30 days from the date contemplated at the time of the previous year's
proxy statement, not less than a reasonable time, as determined by the Board
of Directors, prior to the date of the applicable annual meeting.
Nomination of persons for election to the Board of Directors may be
made by the Board of Directors or any committee designated by the Board of
Directors or by any stockholder entitled to vote for the election of directors
at the applicable meeting of stockholders. However, nominations other than
those made by the Board of Directors or its designated committee must comply
with the procedures set forth in this Section 6, and no person shall be
eligible for election as a director unless nominated in accordance with the
terms of this Section 6.
A stockholder may nominate a person or persons for election to the
Board of Directors by giving written notice to the Secretary of the
Corporation in accordance with the procedures set forth above. In addition to
the timeliness requirements set forth above for notice to the Corporation by a
stockholder of business to be submitted at an annual meeting of stockholders,
with respect to any special meeting of stockholders called for the election of
directors, written notice must be delivered in the manner specified above and
not later than the close of business on the seventh day following the date on
which notice of such meeting is first given to stockholders.
The Secretary of the Corporation shall deliver any stockholder
proposals and nominations received in a timely manner for review by the Board
of Directors or a committee designated by the Board of Directors.
A stockholder's notice to submit business to an annual meeting of
stockholders shall set forth (i) the name and address of the stockholder, (ii)
the class and number of shares of stock beneficially owned by such
stockholder, (iii) the name in which such shares are registered on the stock
transfer books of the Corporation, (iv) a representation that the stockholder
intends to appear at the meeting in person or by proxy to submit the business
specified in such notice, (v) any material interest of the stockholder in the
business to be submitted and (vi) a brief description of the business desired
to be submitted to the annual meeting, including the complete text of any
resolutions to be presented at the annual meeting, and the reasons for
conducting such business at the annual meeting. In addition, the stockholder
making such proposal shall promptly provide any other information reasonably
requested by the Corporation.
In addition to the information required above to be given by a
stockholder who intends to submit business to a meeting of stockholders, if
the business to be submitted is the nomination of a person or persons for
election to the Board of Directors then such stockholder's notice must also
set forth, as to each person whom the stockholder proposes to nominate for
election as a director, (a) the name, age, business address and, if known,
residence address of such person, (b) the principal occupation or employment
of such person, (c) the class and number of shares of stock of the Corporation
which are beneficially owned by such person, (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors or is otherwise required by the rules and
regulations of the Securities and Exchange Commission promulgated under the
Securities Exchange Act of 1934, as amended, (e) the written consent of such
person to be named in the proxy statement as a nominee and to serve as a
director if elected and (f) a description of all arrangements or
understandings between such stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholder.
Any person nominated for election as director by the Board of
Directors or any committee designated by the Board of Directors shall, upon
the request of the Board of Directors or such committee, furnish to the
Secretary of the Corporation all such information pertaining to such person
that is required to be set forth in a stockholder's notice of nomination.
Notwithstanding the foregoing provisions of this Section 6, a
stockholder who seeks to have any proposal included in the Corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended.
Section 7. Voting. Except as otherwise provided by law or by the
Certificate of Incorporation, all matters submitted to a meeting of
stockholders shall be decided by vote of the holders of record, present in
person or by proxy, of a majority of the Corporation's stock issued and
outstanding and entitled to vote.
A proxy shall be executed in writing by the stockholder or by his or
her duly authorized attorney-in-fact and shall be delivered to the secretary
of the meeting at or prior to the time designated by the chairman of the
meeting. No stockholder may designate more than four persons to act on his or
her behalf at a meeting of stockholders.
Section 8. Inspectors of Election. Prior to any meeting of
stockholders, the Board of Directors shall appoint one or more inspectors to
act at the meeting and make a written report thereof in accordance with the
Delaware General Corporation Law. The Board of Directors may designate one or
more persons as alternate inspectors to replace any inspector who fails to
act. Each inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his or her ability.
Section 9. Record Date for Action by Written
Consent; Inspectors and Effectiveness
(a) In order that the Corporation may determine the
stockholders 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 stockholder of record seeking to have
the stockholders 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 stockholders 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 Delaware, its
principal place of business or to any officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded, to the attention of the
Secretary of the Corporation. 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
stockholders 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.
(b) In the event of the delivery, in the manner provided by
Section 9(a), to the Corporation of the requisite written consent or
consents to take corporate action and/or any related revocation or
revocations, the Corporation shall engage nationally recognized
independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform
such review, no action by written consent without a meeting shall be
effective until such date as the independent inspectors certify to
the Corporation that the consents delivered to the Corporation in
accordance with Section 9(a) represent at least the minimum number of
votes that would be necessary to take the corporate action. Nothing
contained in this paragraph shall in any way be construed to suggest
or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including,
without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief
in such litigation).
(c) Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated written consent delivered in
accordance with Section 9(a), a written consent or consents signed by
a sufficient number of stockholders to take such action are delivered
to the Corporation in the manner prescribed in Section 9(a).
ARTICLE II
DIRECTORS
Section 1. Number, Election and Removal of Directors. The number of
Directors that shall constitute the Board of Directors shall be not less than
one nor more than seventeen. The first Board of Directors shall consist of
three Directors. Thereafter, within the limits specified above, the number of
Directors shall be determined by the Board of Directors or by the
stockholders. The Directors shall be elected by the stockholders at their
annual meeting and shall serve until the next annual meeting of stockholders
and until their successors are elected and shall qualify. Vacancies and newly
created directorships resulting from any increase in the number of Directors
may be filled by a majority of the Directors then in office, although less
than a quorum, or by the sole remaining Director or by the stockholders, and
any Director so chosen shall serve until the next annual meeting of
stockholders and until his or her successor shall be elected and shall
qualify. A Director may be removed with or without cause by the stockholders.
Section 2. Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as may from time to time be fixed by
the Board of Directors or as may be specified in a notice of meeting. Special
meetings of the Board of Directors may be held at any time upon the call of
the Chairman or the Chief Executive Officer and shall be called by the
Chairman, the Chief Executive Officer or the Secretary if directed by the
Board of Directors. A meeting of the Board of Directors may be held without
notice immediately after the annual meeting of stockholders. Notice need not
be given of regular or special meetings of the Board of Directors.
Section 3. Quorum. One-third of the total number of Directors shall
constitute a quorum for the transaction of business. If a quorum is not
present at any meeting of the Board of Directors, the Directors present may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until such a quorum is present. Except as otherwise provided
by law, the Certificate of Incorporation of the Corporation, these By-Laws or
any contract or agreement to which the Corporation is a party, 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.
Section 4. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the entire Board, may appoint from among
its members an Executive Committee consisting of the Chief Executive Officer,
if such officer is a member of the Board of Directors, or the Chairman, if the
Chief Executive Officer is not a member of the Board of Directors, and at
least two other Directors. Meetings of the Executive Committee shall be held
without notice at such dates, times and places as shall be determined by the
Executive Committee. The Executive Committee 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 that are permitted by law to be
exercised by a committee of the Board of Directors, including the power to
declare dividends, to authorize the issuance of stock and to adopt a
certificate of ownership and merger of parent corporation and subsidiary or
subsidiaries; provided, however, that the Executive Committee shall not have
the power or authority of the Board of Directors in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation
with respect to the Corporation, recommending to the stockholders the sale,
lease or exchange of all or substantially all the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, amending the By-Laws of the Corporation or
adopting a certificate of ownership and merger of the Corporation (other than
a certificate of ownership and merger of parent corporation and subsidiary or
subsidiaries). The majority of the members of the Executive Committee shall
constitute a quorum. Minutes shall be kept of the proceedings of the
Executive Committee, which shall be reported at meetings of the Board of
Directors. The Executive Committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock
adopted by the Board of Directors of the Corporation, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange or such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation or fix the number of shares of any series of stock or authorize
the increase or decrease of the shares of any series.
Section 5. Other Committees of Directors. The Board of Directors
may, by resolution adopted by a majority of the Board of Directors, designate
one or more other committees to have and exercise such power and authority as
the Board of Directors shall specify. 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 she or they constitute
a quorum, may unanimously appoint another Director to act at the meeting in
place of any such absent or disqualified member.
ARTICLE III
OFFICERS
Section 1. Description and Terms. The officers of the Corporation
shall be the Chairman, the Chief Executive Officer, one or more Vice Chairmen,
a President, a Secretary, a Treasurer and such other additional officers with
such titles as the Board of Directors shall determine, all of whom shall be
chosen by and serve at the pleasure of the Board of Directors; provided that
the Chief Executive Officer may appoint Senior Vice Presidents, Vice
Presidents or Assistant Officers at his or her discretion. The Chairman shall
be an employee of the Corporation. There shall be an office of the Chief
Executive Officer, which shall consist of the Chief Executive Officer, such
Vice Chairmen and such other officers as shall be designated by the Chief
Executive Officer. Subject to such limitations as may be imposed by the Board
of Directors, the Chief Executive Officer shall have full executive power and
authority with respect to the Corporation. Each Vice Chairman and the
President shall have such powers and authority as the Chief Executive Officer
may determine. If the Chief Executive Officer is absent or incapacitated, the
President or, in the President's absence or incapacitation, the Chairman or
such other person as shall be designated by the Chairman shall have all the
power and authority of the Chief Executive Officer. Other officers shall have
the usual powers and shall perform all the usual duties incident to their
respective offices. All officers shall be subject to the supervision and
direction of the Board of Directors. The authority, duties or
responsibilities of any officer of the Corporation may be suspended by the
Chief Executive Officer with or without cause. Any officer elected or
appointed by the Board of Directors may be removed by the Board of Directors
with or without cause. Subject to such limitations as the Board of Directors
may provide, each officer may further delegate to any other officer or any
employee or agent of the Corporation such portions of his or her authority as
the officer shall deem appropriate, subject to such limitation as the officer
shall specify, and may revoke such authority at any time.
Section 2. Stockholder Consents and Proxies. The Chairman, the Chief
Executive Officer, each Vice Chairman, the President, the Secretary and the
Treasurer, or anyone of them, shall have the power and authority on behalf of
the Corporation to execute any stockholders' consents or proxies and to attend
and act and vote in person or by proxy at any meetings of stockholders of any
corporation in which the Corporation may own stock, and at any such meetings
shall possess and may exercise any and all of the rights and powers incident
to the ownership of such stock which as the owner thereof the Corporation might
have possessed and executed if present. The Board of Directors by resolution
from time to time may confer like powers upon any other officer.
ARTICLE IV
INDEMNIFICATION
To the fullest extent permitted by the Delaware General Corporation
Law, the Corporation shall indemnify any current or former Director or officer
of the Corporation and may, at the discretion of the Board of Directors,
indemnify any current or former employee or agent of the Corporation against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
any threatened, pending or completed action, suit or proceeding brought by or
in the right of the Corporation or otherwise, to which he or she was or is a
party or is threatened to be made a party by reason of his or her current or
former position with the Corporation or by reason of the fact that he or she
is or was serving, at the request of the Corporation, as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
ARTICLE V
GENERAL PROVISIONS
Section 1. Notices. Whenever any statute, the Certificate of
Incorporation or these By-Laws require notice to be given to any Director or
stockholder, such notice to be given in writing by mail, addressed to such
Director or stockholder at his or her address as it appears on the records of
the Corporation, with postage thereon prepaid. Such notice shall be deemed to
have been given when it is deposited in the United States mail. Notice to
Directors may also be given by telegram or facsimile transmission or be
delivered personally or be telephone.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors.
Section 3. Certificates of Stock. Certificates representing shares
of the Corporation shall be signed by the Chairman or the Chief Executive
Officer and by the Secretary or an Assistant Secretary. Any and all
signatures on such certificates, including signatures of officers, transfer
agents and registrars, may be facsimile.