EXHIBIT 3.2
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AURORA FOODS INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
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AMENDED AND RESTATED
BY-LAWS
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AS ADOPTED ON MARCH 19, 2004
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AMENDED AND RESTATED
BY-LAWS OF
AURORA FOODS INC.
ARTICLE I
OFFICES
1.1 REGISTERED OFFICE.
The registered office of Aurora Foods Inc. (the "Corporation") in the
State of Delaware shall be at 9 East Loockerman Street, City of Dover, County of
Kent 19901, and the registered agent in charge thereof shall be National
Registered Agents, Inc.
1.2 OTHER OFFICES.
The Corporation may also have an office or offices at any other place or
places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1 ANNUAL MEETINGS.
The annual meeting of the stockholders for the election of directors, and
for the transaction of such other business as may properly come before the
meeting, shall be held at such place, date and hour as shall be fixed by the
Board of Directors of the Corporation (the "Board") and designated in the notice
or waiver of notice thereof, except that no annual meeting need be held if all
actions, including the election of directors, required by the General
Corporation Law of the State of Delaware (the "DGCL") to be taken at a
stockholders' annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.10 of this Article II.
2.2 SPECIAL MEETINGS.
A special meeting of the stockholders for any purpose or purposes may be
called by the Board, the Chairman, the President or at least a majority in
voting interest of the stockholders, to
be held at such place, date and hour as shall be designated in the notice or
waiver of notice thereof.
2.3 NOTICE OF MEETINGS.
Except as otherwise required by statute, the Certificate of Incorporation
of the Corporation, as amended from time to time (the "Certificate"), or these
Amended and Restated By-laws (these "By-laws"), notice of each annual or special
meeting of the stockholders shall be given to each stockholder of record
entitled to vote at such meeting not less than 10 nor more than 60 days before
the day on which the meeting is to be held, by delivering written notice thereof
to him personally, or by mailing a copy of such notice, postage prepaid,
directly to him at his address as it appears in the records of the Corporation,
or by transmitting such notice thereof to him at such address by telegraph,
cable or other telephonic transmission. Every such notice shall state the place,
the date and hour of the meeting, and, in case of a special meeting, the purpose
or purposes for which the meeting is called. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy, or who shall, in person or by
attorney thereunto authorized, waive such notice in writing, either before or
after such meeting. Except as otherwise provided in these By-laws, neither the
business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such notice or waiver of notice. Notice of
any adjourned meeting of stockholders shall not be required to be given, except
when expressly required by law.
2.4 QUORUM.
At each meeting of the stockholders, except where otherwise provided by
the Certificate or these By-laws, the holders of a majority of the issued and
outstanding shares of Common Stock of the Corporation entitled to vote at such
meeting, present in person or represented by proxy, shall constitute a quorum
for the transaction of business. In the absence of a quorum, a majority in
voting interest of the stockholders present in person or represented by proxy
and entitled to vote, or, in the absence of all the stockholders entitled to
vote, any officer entitled to preside at, or act as secretary of, such meeting,
shall have the power to adjourn the meeting from time to time, until
stockholders holding the requisite amount of stock to constitute a quorum shall
be present or represented. At any such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally called.
2.5 ORGANIZATION.
Unless otherwise determined by the Board, at each meeting of the
stockholders, one of the following shall act as chairman of the meeting and
preside thereat, in the following order of precedence:
(a) the Chairman, if any;
(b) the President;
(c) the Vice President;
(d) any director, officer or stockholder of the Corporation
designated by the Board to act as chairman of such meeting and to preside
thereat if the Chairman, the President or the Vice President shall be absent
from such meeting; or
(e) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in person
or by proxy and entitled to vote thereat.
The Secretary or, if he shall be presiding over such meeting in accordance
with the provisions of this Section 2.5 or if he shall be absent from such
meeting, the person (who shall be an Assistant Secretary, if an Assistant
Secretary has been appointed and is present) whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the minutes
thereof.
2.6 ORDER OF BUSINESS.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but such order of business may be
changed by a majority in voting interest of those present in person or by proxy
at such meeting and entitled to vote thereat.
2.7 VOTING.
Except as otherwise provided by law, the Certificate or these By-laws, at
each meeting of the stockholders, every stockholder of the Corporation shall be
entitled to one vote in person or by proxy for each share of Common Stock of the
Corporation held by him and registered in his name on the books of the
Corporation on the date fixed pursuant to Section 6.7 of Article VI as the
record date for the determination of stockholders entitled to vote at such
meeting. Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. A person whose stock is pledged shall be entitled to vote,
unless, in the transfer by the pledgor on the books of the Corporation, he has
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or his proxy may represent such stock and vote thereon. If shares or other
securities having voting power stand in the record of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary shall be
given written notice to the contrary and furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds
all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 2.7 shall
be a majority or even-split in interest. The Corporation shall not vote directly
or indirectly any share of its own capital stock. Any vote of stock may be given
by the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except where other provision is made by law, the Certificate or
these By-laws) shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereon, a quorum being present. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
question need not be by ballot. Upon a demand by any such stockholder for a vote
by ballot upon any question, such vote by ballot shall be taken. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy,
if there be such proxy, and shall state the number of shares voted.
2.8 INSPECTION.
The chairman of the meeting may at any time appoint one or more inspectors
to serve at any meeting of the stockholders. Any inspector may be removed, and a
new inspector or inspectors appointed, by the Board at any time. Such inspectors
shall decide upon the qualifications of voters, accept and count votes, declare
the results of such vote, and subscribe and deliver to the secretary of the
meeting a certificate stating the number of shares of stock issued and
outstanding and entitled to vote thereon and the number of shares voted for and
against the question, respectively. The inspectors need not be stockholders of
the Corporation, and any director or officer of the Corporation may be an
inspector on any question other than a vote for or against his election to any
position with the Corporation or on any other matter in which he may be directly
interested. Before acting as herein provided, each inspector shall subscribe an
oath faithfully to execute the duties of an inspector with strict impartiality
and according to the best of his ability.
2.9 LIST OF STOCKHOLDERS.
It shall be the duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger to prepare and make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote thereat, 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 any such meeting, during ordinary business hours, for
a period of at least 10 days prior to such meeting, either at a place within the
city where such 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. Such list shall also 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.
2.10 STOCKHOLDERS' CONSENT IN LIEU OF MEETING.
Any action required by the DGCL to be taken at any annual or special
meeting of the stockholders of the Corporation, or any action which may be taken
at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, by a consent in writing, as
permitted by the DGCL.
ARTICLE III
BOARD OF DIRECTORS
3.1 GENERAL POWERS.
The business, property and affairs of the Corporation shall be managed by
or under the direction of the Board, which 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 directed or required to be exercised or done by the stockholders.
3.2 NUMBER AND TERM OF OFFICE.
Except as otherwise required by the Certificate, the number of directors
shall be fixed from time to time by the Board. Directors need not be
stockholders. Each director shall hold office until his successor is elected and
qualified, or until his earlier death or resignation or removal in the manner
hereinafter provided.
3.3 ELECTION OF DIRECTORS.
At each meeting of the stockholders for the election of directors at which
a quorum is present, the persons receiving the greatest number of votes, up to
the number of directors to be elected, of the stockholders present in person or
by proxy and entitled to vote thereon shall be the directors; provided, however,
that for purposes of such vote no stockholder shall be allowed to cumulate his
votes. Unless an election by ballot shall be demanded as provided in Section 2.7
of Article II, election of directors may be conducted in any manner approved at
such meeting.
3.4 RESIGNATION, REMOVAL AND VACANCIES.
Any director may resign at any time by giving written notice to the Board,
the Chairman, the President or the Secretary. Such resignation shall take effect
at the time specified therein or,
if the time be not specified, upon receipt thereof; unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Any director or the entire Board may be removed, with or without cause, at
any time by vote of the holders of a majority of the shares then entitled to
vote at an election of directors or by written consent of the stockholders
pursuant to Section 2.10 of Article II.
Vacancies occurring on the Board for any reason may be filled by vote of
the stockholders or by the stockholders' written consent pursuant to Section
2.10 of Article II, or by vote of the Board or by the directors' written consent
pursuant to Section 3.6 of this Article III. If the number of directors then in
office is less than a quorum, such vacancies may be filled by a vote of a
majority of the directors then in office.
3.5 MEETINGS.
(a) Annual Meetings. As soon as practicable after each annual
election of directors, the Board shall meet for the purpose of organization and
the transaction of other business, unless it shall have transacted all such
business by written consent pursuant to Section 3.6 of this Article III.
(b) Other Meetings. Other meetings of the Board shall be held at
such times and places as the Board, the Chairman, the President or any director
shall from time to time determine.
(c) Notice of Meetings; Waiver of Notice.
(i) Notice of Meetings. Notice shall be given to each director
of each meeting, including the time, place and purpose of such meeting.
Notice of each such meeting shall be delivered to each director either (a)
personally, (b) by telephone or (c) by first class mail, telegram, or
facsimile (or similar electronic means) or by nationally recognized
overnight courier, charges prepaid, addressed to each director at such
director's address as it is shown on the records of the Corporation. If
the notice is mailed, it shall be deposited in the United States mail at
least ten Business Days before the time of the holding of the meeting. If
the notice is delivered personally or by telephone or by telegram,
facsimile (or similar electronic means) or overnight courier, it shall be
given at least 48 hours before the time of the holding of the meeting. Any
oral notice given personally or by telephone may be communicated either to
the director or to a person designated by such director to receive such
notice. For purposes of this Section 3.5(c)(i), "Business Days" means any
day that is not a Saturday, Sunday, legal holiday or other day on which
banks are required to be closed in New York, New York.
(ii) Waiver of Notice. Notice of any meeting need not be given
to any director who either before or after the meeting signs a written
waiver of notice, a consent to holding the meeting or an approval of the
minutes. The waiver of notice or consent
shall specify the purpose of the meeting. All such waivers, consents, and
approvals shall be filed with the records of the Corporation or made a
part of the minutes of the meeting. Notice of a meeting shall also be
deemed given to any director who attends the meeting without protesting at
or prior to its commencement the lack of notice to that director.
(d) Place of Meetings. The Board may hold its meetings at such place
or places within or outside the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of
directors then in office shall be present in person at any meeting of the Board
in order to constitute a quorum for the transaction of business at such meeting,
and the vote of a majority of those directors present at any such meeting at
which a quorum is present shall be necessary for the passage of any resolution
or act of the Board, except as otherwise expressly required by law or these
By-laws. In the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to time until a
quorum shall be present.
(f) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside thereat, in the following order
of precedence:
(i) the Chairman, if any;
(ii) the President (if a director);
(iii) the Vice President (if a director); or
(iv) any director designated by a majority of the directors
present.
The Secretary or, in the case of his absence, an Assistant Secretary, if
an Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting and
keep the minutes thereof.
3.6 DIRECTORS' CONSENT IN LIEU OF MEETING.
Any action required or permitted to be taken at any meeting of the Board
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the directors then in office and such consent is filed with the minutes of the
proceedings of the Board.
3.7 ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT.
Any one or more members of the Board may participate in a meeting of the
Board by means of conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
3.8 COMMITTEES.
The Board may, by resolution or resolutions passed by a majority of the
whole Board, designate one or more committees, such committee or committees to
have such name or names as may be determined from time to time by resolution
adopted by the Board, and each such committee to consist of one or more
directors of the Corporation, which to the extent provided in said resolution or
resolutions shall have and may exercise the powers of the Board 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. A
majority of all the members of any such committee may determine its action and
fix the time and place of its meetings, unless the Board shall otherwise
provide. The Board shall have power to change the members of any such committee
at any time, to fill vacancies and to discharge any such committee, either with
or without cause, at any time.
ARTICLE IV
OFFICERS
4.1 NUMBER, TITLES AND TERM OF OFFICE.
The officers of the Corporation shall be a President, one or more Vice
Presidents (any one or more of whom may be designated Executive Vice President
or Senior Vice President), a Secretary and, if the Board so elects, a Chairman,
a Treasurer and such other officers as the Board may from time to time elect or
appoint. Each officer shall hold office until his successor shall be duly
elected and shall qualify or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided. Any number of offices may
be held by the same person, unless the Certificate provides otherwise. Except
for Chairman, if any, no officer need be a director.
4.2 AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these By-laws or, to the extent so provided, by the Board.
4.3 VACANCIES.
Any vacancy occurring in any office of the Corporation may be filled by
the Board.
4.4 THE CHAIRMAN.
If elected, the Chairman shall preside at all meetings of the stockholders
and of the Board; and he shall have such other powers and duties as designated
in these By-laws and as from time to time may be assigned to him by the Board.
4.5 THE PRESIDENT.
Unless the Board otherwise determines, the President shall have the
authority to agree upon and execute all leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation; and, unless
the Board otherwise determines, he shall, in the absence of the Chairman or if
there be no Chairman, preside at all meetings of the stockholders and (should he
be a director) of the Board; and he shall have such other powers and duties as
designated in accordance with these By-laws and as from time to time may be
assigned to him by the Board.
4.6 CHIEF EXECUTIVE OFFICER.
Subject to the control of the Board and the executive committee (if any),
the chief executive officer shall have general executive charge, management and
control of the properties, business and operations of the Corporation with all
such powers as may be reasonably incident to such responsibilities; he may agree
upon and execute all leases, contracts, evidence of indebtedness and other
obligations in the name of the Corporation and may sign all certificates for
shares of capital stock of the Corporation; and shall have such other powers and
duties as designated in accordance with these By-laws and as from time to time
may be assigned to him by the Board.
4.7 VICE PRESIDENTS.
In the absence of the President, or in the event of his inability or
refusal to act, a Vice President designated by the Board shall perform 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. In the absence of a
designation by the Board of a Vice President to perform the duties of the
President, or in the event of his absence or inability or refusal to act, the
Vice President who is present and who is senior in terms of time as a Vice
President of the Corporation shall so act. The Vice Presidents shall perform
such other duties and have such other powers as the Board may from time to time
prescribe.
4.8 THE SECRETARY.
The Secretary shall keep the minutes of all meeting of the Board,
committees of directors and the stockholders, in books provided for that
purpose; he shall attend to the giving and serving of all notices; he may in the
name of the Corporation affix the seal of the Corporation to all contracts of
the Corporation and attest the affixation of the seal of the Corporation
thereto; he may sign with the other appointed officers all certificates for
shares of capital stock of the Corporation; he shall have charge of the
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board may direct, all of which shall at all reasonable times be
open to inspection of any director upon application at the office of the
Corporation during business hours; he shall have such other powers and duties as
designated in these By-laws and as from time to time may be assigned to him by
the Board; and he shall in general perform all acts
incident to the office of Secretary, subject to the control of the chief
executive officer and the Board.
4.9 ASSISTANT SECRETARIES.
Each Assistant Secretary shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as designated in these
By-laws and as from time to time may be assigned to him by the chief executive
officer or the Board. The Assistant Secretaries shall exercise the powers of the
Secretary during that officer's absence or inability or refusal to act.
4.10 THE TREASURER.
The Treasurer shall have responsibility for the custody and control of all
the funds and securities of the Corporation, and he shall have such other powers
and duties as designated in these By-laws and as from time to time may be
assigned to him by the Board. He shall perform all acts incident to the position
of Treasurer, subject to the control of the chief executive officer and the
Board; and he shall, if required by the Board, give such bond for the faithful
discharge of his duties in such form as the Board may require.
4.11 ASSISTANT TREASURERS.
Each Assistant Treasurer shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as designated in these
By-laws and as from time to time may be assigned to him by the Board. The
Assistant Treasurers shall exercise the power of the Treasurer during that
officer's absence or inability or refusal to act.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 EXECUTION OF DOCUMENTS.
The Board shall designate, by either specific or general resolution, the
officers, employees and agents of the Corporation who shall have the power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation. Unless so
designated or expressly authorized by these By-laws, no officer, employee or
agent shall have any power or authority to bind the Corporation by any contract
or engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or amount.
5.2 DEPOSITS.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board or
Treasurer, or any other officer of the Corporation to whom power in this respect
shall have been given by the Board, shall select.
5.3 PROXIES WITH RESPECT TO STOCK OR OTHER SECURITIES OF OTHER CORPORATIONS.
The Board shall designate the officers of the Corporation who shall have
authority from time to time to appoint an agent or agents of the Corporation to
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, and to vote or consent with respect to such stock or
securities. Such designated officers may instruct the person or persons so
appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its powers and
rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1 CERTIFICATES FOR SHARES.
Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number and class of shares owned by him in the
Corporation, which shall be in such form as shall be prescribed by the Board.
Certificates shall be numbered and issued in consecutive order and shall be
signed by, or in the name of, the Corporation by the Chairman, the President or
any Vice President, and by the Treasurer (or an Assistant Treasurer, if
appointed) or the Secretary (or an Assistant Secretary, if appointed). In case
any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate had not
ceased to be such officer or officers of the Corporation.
6.2 RECORD.
A record in one or more counterparts shall be kept of the name of the
person, firm or corporation owning the shares represented by each certificate
for stock of the Corporation issued, the number of shares represented by each
such certificate, the date thereof and, in the case of cancellation, the date of
cancellation. Except as otherwise expressly required by law, the person in whose
name shares of stock stand on the stock record of the Corporation shall be
deemed the owner thereof for all purposes regarding the Corporation.
6.3 TRANSFER AND REGISTRATION OF STOCK.
The transfer of stock and certificates which represent the stock of the
Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the
Delaware Code (the Uniform Commercial Code), as amended from time to time.
Registration of transfers of shares of the Corporation shall be made only
on the books of the Corporation upon request of the registered holder thereof,
or of his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation, and upon the surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a stock power duly executed.
6.4 ADDRESSES OF STOCKHOLDERS.
Each stockholder shall designate to the Secretary an address at which
notices of meetings and all other corporate notices may be served or mailed to
him, and, if any stockholder shall fail to designate such address, corporate
notices may be served upon him by mail directed to him at his post-office
address, if any, as the same appears on the share record books of the
Corporation or at his last known post-office address.
6.5 LOST, DESTROYED AND MUTILATED CERTIFICATES.
The holder of any shares of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate therefor,
and the Board may, in its discretion, cause to be issued to him a new
certificate or certificates for such shares, upon the surrender of the mutilated
certificates or, in the case of loss or destruction of the certificate, upon
satisfactory proof of such loss or destruction, and the Board may, in its
discretion, require the owner of the lost or destroyed certificate or his legal
representative to give the Corporation a bond in such sum and with such surety
or sureties as it may direct to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or destruction of any such
certificate.
6.6 REGULATIONS.
The Board may make such rules and regulations as it may deem expedient,
not inconsistent with these By-laws, concerning the issue, transfer and
registration of certificates for stock of the Corporation.
6.7 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board 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, and which record date shall be not more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. 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 may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
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, and which date
shall be not more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is required by the DGCL, 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 an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board and prior action by the Board is required by the
DGCL, 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 day on which the Board adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders 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 may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be in the form
of a circle and shall bear the full name of the Corporation, the year of
incorporation of the Corporation and the words and figures "Corporate Seal -
Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
9.1 INDEMNIFICATION.
(a) As provided in the Certificate, to the fullest extent permitted
by the DGCL as the same exists or may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or its stockholders for
breach of fiduciary duty as a director.
(b) Without limitation of any right conferred by paragraph (a) of
this Section 9.1, each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
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 or of a partnership, joint venture, trust or
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 while serving as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto), against all expense, liability and loss (including attorneys'
fees, judgments, fines, excise taxes or amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, testators, intestates, executors and administrators;
provided, however, (i) that such person 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 a criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; (ii) that no
indemnification shall be made in the case of an action, suit or proceeding by or
in the right of the Corporation in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director, officer,
employee or agent is liable to the Corporation, unless a court having
jurisdiction shall determine that, despite such adjudication, such person is
fairly and reasonably entitled to indemnification; and (iii) that, except as
provided in Section 9.1(c) of this Article IX with respect to proceedings to
enforce rights to indemnification, 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) initiated
by such indemnitee was authorized by the Board. The right to indemnification
conferred in this Article IX shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the DGCL 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 an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be 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 Section or otherwise.
(c) If a claim under Section 9.1(b) of this Article IX is not paid
in full by the Corporation with 60 days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of any undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met the applicable standard of conduct set forth in
the DGCL. Neither the failure of the Corporation (including the Board,
independent legal counsel, or the stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the DGCL, nor an actual determination by the
Corporation (including the Board, independent legal counsel or the stockholders)
that the indemnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a defense
to such suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Section or otherwise
shall be on the Corporation.
(d) The rights to indemnification and to the advancement of expenses
conferred in this Article IX shall not be exclusive of any other right which any
person may have or hereafter
acquire under any statute, the Certificate, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) Notwithstanding anything to the contrary contained herein, from
and after the Effective Time (as defined in the Pinnacle Merger Agreement), each
person who has been a director, officer, employee or agent of PFHC or any of its
subsidiaries at any time during the period beginning on May 22, 2001 and ending
on the date of the Effective Time (as defined in the Pinnacle Merger Agreement),
shall be deemed to be an "indemnitee" for purposes of this Article IX. For
purposes of this Section 9(e), "Pinnacle Merger Agreement" means the Agreement
and Plan of Merger, by and among Pinnacle Foods Holding Corporation ("PFHC"),
Crunch Holding Corp., Crunch Acquisition Corp. and HMTF PF, LLC.
(f) Notwithstanding anything to the contrary contained herein, from
and after the Effective Time (as defined in the Merger Agreement), each person
who is, or has been at any time prior to the Closing Date (as defined in the
Merger Agreement), an officer or director of the Corporation or Sea Coast Foods,
Inc., shall be deemed to be an "indemnitee" for purposes of this Article IX with
respect to acts or omissions occurring prior to the Closing Date. For purposes
of this Section 9.1(f), "Merger Agreement" means the Agreement and Plan of
Reorganization and Merger by and between Aurora Foods Inc. and Crunch Equity
Holding, LLC, dated as of November 25, 2003 and as amended on January 8, 2004.
9.2 INSURANCE.
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, employee or
agent of the Corporation or any person who is or was serving at the request of
the Corporation as a director, officer, employer or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the DGCL.
ARTICLE X
AMENDMENT
Any by-law (including these By-laws) may be adopted, amended or repealed
by the vote of the holders of a majority of the shares then entitled to vote or
by the stockholders' written consent pursuant to Section 2.10 of Article II, or
by the vote of the Board or by the directors' written consent pursuant to
Section 3.6 of Article III.
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