EXHIBIT 3.14
FORM OF
AMENDED AND RESTATED BY-LAWS
OF
SERVICE AMERICA CORPORATION OF WISCONSIN
(Adopted _______, 2003)
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ARTICLE I.
SHAREHOLDERS
Section 1. The annual meeting of the shareholders of the
Corporation for the purpose of electing directors and for the transaction of
such other business as may properly be brought before the meeting shall be held
on such date, and at such time and place within or without the State of
Wisconsin, as may be designated from time to time by the Board of Directors.
Section 2. Annual meetings of shareholders 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 the shareholders may
be called by (i) the Chairman of the Board of Directors of the Corporation or by
the Board of Directors pursuant to a resolution approved by the Board of
Directors or (ii) the Board of Directors upon a request by the holders of at
least 10% in voting power of all shares of the Corporation entitled to vote at
such meeting. Each such shareholder request shall state the purpose of the
proposed meeting.
Section 3. Except as otherwise provided by law, the Restated
and Amended Articles of Incorporation or these By-Laws, notice of the time,
place and, in the case of a special meeting, the purpose or purposes of the
meeting of shareholders shall be given not earlier than sixty, nor less than ten
days previous thereto, to each shareholder of record entitled to vote at the
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage pre-paid, directed to the shareholder at such
address as appears on the records of the Corporation.
Section 4. Except as otherwise provided by law, the Restated
and Amended Articles of Incorporation or these By-Laws, the holders of a
majority in voting power of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the shareholders for the transaction of business. If
at any regularly called meeting of shareholders there be less than a quorum
present, the shareholders present may adjourn the meeting from time to time
without further notice other than announcement at the meeting until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if, after the adjournment, a new record date is fixed for the adjourned
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meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 5. Unless otherwise restricted by the Restated and
Amended Articles of Incorporation or these By-Laws, any action required or
permitted to be taken by the holders of the common stock of the Corporation may
be taken without a meeting if a consent in writing setting forth the action so
taken is signed by the number of shareholders as would be necessary to authorize
or take the action at a meeting at which all shares entitled to vote were
present and voted.
Section 6. When a quorum is present at any meeting, the vote
of the holders of a majority in voting power of the stock present in person or
represented by proxy and entitled to vote on the matter shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of statute or of the Restated Certificate of Incorporation,
these By-Laws or the rules or regulations of any stock exchange applicable to
the Corporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. The Board of Directors of the Corporation shall
consist of at least one (1) director, or such other number of directors as shall
from time to time be fixed exclusively by resolution of the Board of Directors.
Directors shall (except as hereinafter provided for the filling of newly created
directorships) be elected by the holders of a plurality of the votes cast by
holders of shares present in person or represented by proxy and entitled to vote
thereon. A majority of the total number of directors then in office (but not
less than one-third of the number of directors constituting the entire Board of
Directors) shall constitute a quorum for the transaction of business and, except
as otherwise provided by law or by the Corporation's Restated Certificate of
Incorporation, 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. Directors
need not be shareholders.
Section 2. Newly created directorships in the Board of
Directors that result from an increase in the number of directors shall be
filled only by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director; and the directors so chosen shall hold
office for a term as set forth in the Restated and Amended Articles of
Incorporation of the Corporation. Directors may be removed for any reason by the
affirmative vote of at least a majority in voting power of all shares of the
Corporation entitled to vote generally in the election of directors.
Section 3. Meetings of the Board of Directors shall be held at
such place within or without the State of Wisconsin as may from time to time be
fixed by resolution of the Board or as may be specified in the notice of any
meeting. Regular meetings of the Board of Directors shall be held at such times
as may from time to time be fixed by resolution of the Board and special
meetings may be held at any time upon the call of the President or Chief
Executive
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Officer or a majority of the directors, by oral, or written notice including,
telegram, cablegram, telecopy or other means of electronic transmission, duly
served on or sent or mailed to each director at such director's address or
telecopy number as shown on the books of the Corporation not less than
twenty-four hours before the special meeting. The notice of any meeting need not
specify the purposes thereof. A meeting of the Board may be held without notice
immediately after the annual meeting of shareholders at the same place at which
such meeting is held. Notice need not be given of regular meetings of the Board
held at times fixed by resolution of the Board. Notice of any meeting need not
be given to any director who shall attend such meeting in person (except when
the director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened), or who shall waive notice thereof, before
or after such meeting, in writing or by electronic transmission.
Section 4. The Board of Directors may, by resolution adopted
by a majority of the whole Board, designate one or more committees, including,
without limitation, an Executive Committee, 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
they constitute a quorum, may unanimously appoint another director to act at the
absent of disqualified member.
Each committee may determine the procedural rules for meeting
and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Provision shall be made for notice
to members of all meetings; one-third of the members shall constitute a quorum
unless the committee shall consist of one or two members, in which event one
member shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present at any meeting at which there is a quorum.
Section 5. Unless otherwise restricted by the Restated and
Amended Articles of Incorporation or these By-Laws, 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 or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee, as the case may be in accordance with applicable law.
Section 6. The members of the Board of Directors or any
committee thereof may participate in a meeting of such Board or committee, as
the case may be, by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this section shall
constitute presence in person at such a meeting.
Section 7. The Board of Directors may establish policies for
the compensation of directors and for the reimbursement of the expenses of
directors, in each case, in connection with services provided by directors to
the Corporation.
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ARTICLE III.
OFFICERS
Section 1. The Board of Directors shall elect officers of the
Corporation, including a President or Chief Executive Officer and a Secretary.
The Board of Directors may also from time to time elect such other officers
(including one or more Vice Presidents, a Treasurer, one or more Assistant Vice
Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers) as it may deem proper or may delegate to any elected officer of the
Corporation the power to appoint and remove any such other officers and to
prescribe their respective terms of office, authorities and duties. Any Vice
President may be designated Executive, Senior or Corporate, or may be given such
other designation or combination of designations as the Board of Directors may
determine. Any two or more offices may be held by the same person, except that
one person shall not be both the President or Chief Executive Officer and
Secretary.
Section 2. All officers of the Corporation elected by the
Board of Directors shall hold office for such term as may be determined by the
Board of Directors or until their respective successors are chosen and
qualified. Any officer may be removed from office at any time either with or
without cause by the affirmative vote of a majority of the members of the Board
then in office, and, in the case of appointed officers, by any elected officer
upon whom such power of removal shall have been conferred by the Board of
Directors.
Section 3. Each of the officers of the Corporation elected by
the Board of Directors or appointed by an officer in accordance with these
By-Laws shall have the powers and duties prescribed by law, by the By-Laws or by
the Board of Directors and, in the case of appointed officers, the powers and
duties prescribed by the appointing officer, and, unless otherwise prescribed by
the By-Laws or by the Board of Directors or such appointing officer, shall have
such further powers and duties as ordinarily pertain to that office.
Section 4. Unless otherwise provided in these By-Laws, in the
absence or disability of any officer of the Corporation, the Board of Directors
may, during such period, delegate such officer's powers and duties to any other
officer or to any director and the person to whom such powers and duties are
delegated shall, for the time being, hold such office.
ARTICLE IV.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
To the fullest extent permitted by the laws of the State of
Wisconsin:
Section 1. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative is or was a
director or an officer of the corporation or, while a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer or trustee of another corporation, partnership, joint venture, trust or
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other enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer or trustee or in any other
capacity while serving as a director, officer or trustee, shall be indemnified
and held harmless by the corporation to the fullest extent authorized by the
Wisconsin Business Corporation Law ("WBCL"), as the same exists or may hereafter
be amended, against all reasonable expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in the by-laws of the corporation with respect to proceedings to enforce rights
to indemnification and "advancement of expenses" (as defined below), the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the board of directors of the Corporation.
Section 2. In addition to the right to indemnification
conferred in this Article IV, section 1, an indemnitee, upon his or her written
request, shall also have the right to be paid by the Corporation the reasonable
expenses (including attorneys' fees) incurred in defending any such proceeding
as incurred (hereinafter an "advancement of expenses"); provided, however, that,
if the WBCL requires, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of: (1) a written affirmation of the indemnitee's
good faith belief that he or she has not breached or failed to perform his or
her duties to the Corporation; and (2) a written undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced to the extent that it is ultimately determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Article IV or otherwise.
Section 3. A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for monetary damages
for breach of or failure to perform any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes: (1) a willful failure to deal fairly
with the Corporation or its shareholders in connection with a matter in which
the director has a material conflict of interest; (2) a violation of the
criminal law, unless the director had reasonable cause to believe that his or
her conduct was lawful or no reasonable cause to believe that his or her conduct
was unlawful; (3) a transaction from which the director derived an improper
personal profit; or (4) willful misconduct. Any repeal or modification of this
Article IV, section 3 shall be prospective only, and shall not adversely affect
any elimination or limitation of the personal liability of a director of the
Corporation in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. The shares of stock of the Corporation shall be
represented by certificates which set forth thereon the statements prescribed by
Section 180.0625 of the WBCL
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and signed by, or in the name of the Corporation by the President or Chief
Executive Officer or a Vice President, and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation, or as
otherwise permitted by law, representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile.
Section 2. Transfers of stock shall be made on the books of
the Corporation by the holder of the shares in person or by such holder's
attorney upon surrender and cancellation of certificates for a like number of
shares, or as otherwise provided by law with respect to uncertificated shares.
ARTICLE VI.
CORPORATE BOOKS
The books of the Corporation may be kept outside of the State
of Wisconsin at such place or places as the Board of Directors may from time to
time determine.
ARTICLE VII.
CHECKS, NOTES, PROXIES, ETC.
All checks and drafts on the Corporation's bank accounts and
all bills of exchange and promissory notes, and all acceptances, obligations and
other instruments for the payment of money, shall be signed by such officer or
officers or agent or agents as shall be hereunto authorized from time to time by
the Board of Directors. Proxies to vote and consents with respect to securities
of other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
President or Chief Executive Officer, or by any such officers as the Board of
Directors may from time to time determine.
ARTICLE VIII.
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board
of Directors.
ARTICLE IX.
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of
the Corporation. In lieu of the corporate seal, a facsimile thereof may be
impressed or affixed or reproduced.
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ARTICLE X.
FACSIMILE SIGNATURES
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these By-Laws, facsimile signatures of any
officer or officers of the Corporation may be used whenever and as authorized by
the Board of Directors or a committee thereof.
ARTICLE XI.
AMENDMENTS
The Board of Directors shall be authorized to make, amend,
alter, change, add to or repeal these By-Laws without a shareholder vote in any
manner not inconsistent with the laws of the State of Wisconsin, subject to the
power of the shareholders entitled to vote to amend, alter, change, add to or
repeal these By-Laws. Notwithstanding anything contained in these By-Laws to the
contrary, the affirmative vote of the holders of at least majority in voting
power of all the shares of the Corporation entitled to vote generally in the
election of directors shall be required in order for the shareholders to amend,
alter, change, add to or repeal these By-Laws.