EXHIBIT 3(b)
AMENDED AND RESTATED
BYLAWS
OF
SYSCO CORPORATION
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in 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 of Directors
or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation
certifying the number of shares owned by the stockholder in the Corporation. Any
or all of the signatures on the certificate may be 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 or she were such officer,
transfer agent or registrar at the date of issue.
Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
Delaware General Corporation Law, as amended (the "General Corporation Law").
Any restrictions on the transfer or registration of transfer of any shares of
stock of any class or series shall be noted conspicuously on the certificate
representing such shares.
The Corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and may require the owner of any lost, stolen, or destroyed
certificate, or his, her or its legal representative, to give the Corporation a
bond sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The Corporation shall not issue
fractions of a share. In lieu thereof it shall either pay in cash the fair value
of fractions of a share, as determined by the Board of Directors, to those
entitled thereto or issue scrip or fractional warrants in registered or bearer
form over the manual or facsimile signature of an officer of the Corporation or
of its agent, exchangeable as therein provided for full shares, but such scrip
or fractional warrants shall not entitle the holder to any rights of a
stockholder except as therein provided. Such scrip or fractional warrants may be
issued subject to the condition that the same
shall become void if not exchanged for certificates representing full shares of
stock before a specified date, or subject to the condition that the shares of
stock for which such scrip or fractional warrants are exchangeable may be sold
by the Corporation and the proceeds thereof distributed to the holders of such
scrip or fractional warrants, or subject to any conditions which the Board of
Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the Corporation shall be made
only on the stock ledger of the Corporation, in accordance with the terms and
procedures as outlined in the General Corporation Law.
4. RECORD DATE FOR STOCKHOLDERS. (a) Meetings; Dividends and
Distributions. 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, 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 60 nor less than ten days before the date of any meeting,
and shall not be more than 60 days prior to any other action taken, and, in any
event, may not precede the date on which the resolution fixing the record date
is adopted. If no record date is fixed by the Board of Directors: (1) 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; and (2) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. 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.
(b) Record Date for Action by Written Consent. 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 ten 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 may within ten business
days after the date on which such a request is received, adopt a resolution
fixing the record date (unless a record date has previously been fixed by the
Board of Directors pursuant to the first sentence of this Section 4(b)). If no
record date has been fixed by the Board of Directors pursuant to the first
sentence of this Section 4(b) or otherwise within ten business days after the
date on which such a request is received, the record date for determining
stockholders entitled to consent to such 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 any officer or agent of the Corporation having
custody of the book in which
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proceedings of stockholders meetings are recorded, to the attention of the
Secretary. Delivery 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 the close of business on the date on which
the Board of Directors adopts the resolution taking such prior action.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the Corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or
shares of stock and any holder or holders of record of outstanding shares of
stock of any class upon which or upon whom the certificate of incorporation
confers such rights where there are two or more classes or series of shares of
stock or upon which or upon whom the General Corporation Law confers such rights
notwithstanding that the certificate of incorporation may provide for more than
one class or series of shares of stock, one or more of which are limited or
denied such rights thereunder; provided, however, that no such right shall vest
in the event of an increase or a decrease in the authorized number of shares of
stock of any class or series which is otherwise denied voting rights under the
provisions of the certificate of incorporation.
6. STOCKHOLDER MEETINGS.
- Time. The first annual meeting shall be held on the second Friday in
October, 1970; and each successive annual meeting shall be held on the date and
at the time and place fixed, from time to time, by the directors. A special
meeting shall be held on the date and at the time fixed by the directors.
- Place. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the directors may, from time
to time, fix. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive office of the Corporation.
- Call. Annual meetings and special meetings may be called by the
Chairman of the Board or by the directors or by any officer instructed by the
directors to call the meeting.
- Notice or Waiver of Notice. Notice of all meetings shall be given in
any manner permitted by the General Corporation Law and, if more than one manner
is permitted, in the manner elected by the Corporation, and shall state the
place, date, and hour of the meeting. The notice of an annual meeting shall
state that the meeting is called for the election of directors and for the
transaction of any other business which may properly come before the meeting.
The notice of a special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any meeting shall be
given by the Corporation not less than ten days nor more than 60 days before the
date of the meeting, except as otherwise required by the General Corporation
Law. Notice by mail shall be deemed to be given when deposited, with
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postage thereon prepaid, in the United States mail directed to the stockholder
at such stockholder's address as it appears on the records of the Corporation.
If a meeting is adjourned to another time and/or to another place, and if an
announcement of the adjourned time and/or place is made at the meeting, it shall
not be necessary to give notice of the adjourned meeting unless the adjournment
is for more than 30 days or the directors, after adjournment, fix a new record
date for the adjourned meeting. Notice need not be given to any stockholder who
submits a written waiver of notice by such stockholder before or after the time
stated therein. Attendance of a person at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice. Any previously scheduled meeting of stockholders may
be postponed, and any special meeting of stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
- 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, for a period of at least ten days prior to the meeting
in the manner provided by the General Corporation Law. The stockholder list
shall also be open to examination of any stockholder at the time and place of
the meeting during the whole time thereof as provided by the General Corporation
Law. The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this section, or the
books of the Corporation, or to vote at any meeting of stockholders.
- Conduct of Meeting. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting - the Chairman of the Board, the President, a Vice-President, or, if
none of the foregoing is in office and present and acting, by a chairman to be
chosen by the stockholders. The Secretary of the Corporation, or in his or her
absence, an Assistant Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint a secretary of the meeting. The presiding
officer may establish the rules of conduct for the meeting and may adjourn any
meeting at any time during the meeting regardless of whether a quorum is
present.
- Proxy Representation. Every stockholder may authorize another person
or persons to act for him, her or it by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be authorized by the stockholder, by his,
her or its attorney-in-fact or as otherwise permitted by the General Corporation
Law, by an instrument in writing or by a transmission permitted by law and filed
in accordance with the procedure established for the meeting. No proxy shall be
voted or acted upon after three years from its date unless such proxy provides
for a longer period. A duly authorized proxy shall be
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irrevocable if it states that it is irrevocable and, if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the Corporation
generally.
- Inspectors and Judges. The directors, in advance of any meeting, may,
and to the extent required by the General Corporation Law or stock exchange
regulations shall, appoint one or more inspectors of election or judges of the
vote, as the case may be, to act at the meeting or any adjournment thereof. If
an inspector or inspectors or judge or judges are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors or
judges. In case any person who may be appointed as an inspector or judge fails
to appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector or judge, if any, before entering upon the discharge of his or
her duties, shall take and sign an oath faithfully to execute the duties of
inspector or judge at such meeting with strict impartiality and according to the
best of his or her ability. The inspectors or judges, if any, shall determine
the number of shares of stock outstanding and the voting power of each, the
shares of stock represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the meeting,
the inspector or inspectors or judge or judges, if any, shall make a report in
writing of any challenge, question or matter determined by him, her or them and
execute a certificate of any fact found by him, her or them.
- Quorum. The holders of thirty-five percent (35%) of the shares
entitled to vote shall constitute a quorum at a meeting of stockholders for the
transaction of any business.
- Voting. Except as may otherwise be provided in the certificate of
incorporation, or in a resolution of the Board of Directors in accordance with
Section 151 of the General Corporation Law, each share of stock shall entitle
the holder thereof to one vote. In the election of directors, a plurality of the
votes cast shall elect. Any other action shall be authorized by a majority of
the votes cast except where the Corporation's certificate of incorporation,
bylaws or the General Corporation Law prescribe a different percentage of votes
and/or a different exercise of voting power. In the election of directors,
voting need not be by written ballot. Voting by written ballot shall not be
required for any other corporate action, except as otherwise provided by the
General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. (a) Written Consent. Whenever
the vote of stockholders at a meeting thereof is required or permitted to be
taken or in connection with any corporate action, the meeting and vote of
stockholders may be dispensed with if all of the stockholders who would have
been entitled to vote upon the action if such meeting were held shall consent in
writing to such corporate action being taken; or if less than all of said
stockholders, but not less than those having at least the minimum voting power
required to take corporate action in writing under the provisions of the General
Corporation Law, shall consent in writing to such corporate action; provided
that prompt notice be given to all stockholders of the taking of such action
without a meeting and by less than unanimous written
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consent and such written consent is otherwise obtained in accordance with the
General Corporation Law.
(b) Review of Written Consent. In the event of the delivery,
in the manner provided by Section 4(b), to the Corporation of the requisite
written consent or consents to take corporate action and/or any related
revocation or revocations (each such written consent and related revocation is
referred to in this Section 7(b) as a "Consent"), the Secretary shall provide
for the safe-keeping of such Consent and shall conduct such reasonable
investigation as he or she deems necessary or appropriate for the purpose of
ascertaining the validity of the Consent and all matters incident thereto,
including, without limitation, whether stockholders having the requisite voting
power to authorize or take the corporate action specified in the Consent have
given consent; provided, however, that if the corporate action to which the
Consent relates is the election, designation, appointment, removal or
replacement of one or more members of the Board of Directors, the Secretary
shall engage nationally recognized independent inspectors of elections for the
purpose of performing the actions of the Secretary under this Section 7(b). For
the purpose of permitting the Secretary or the independent inspectors (as the
case may be) to perform the functions under this Section 7(b), no action by
written consent without a meeting shall be effective until such date as the
Secretary or the independent inspectors (as the case may be) certify to the
Corporation that the Consents delivered to the Corporation in accordance with
Section 7(b) represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in this Section 7(b)
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,
whether before or after such investigation or certification by the Secretary or
the independent inspectors (as the case may be), or to take any other actions
including, without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief in such
litigation.
(c) Effectiveness of Written Consent. Every written consent
shall bear the date of signature of each stockholder who signs the written
consent and no written consent shall be effective to take the corporate action
referred to therein unless, within 60 days after the date the earliest dated
written consent was delivered in accordance with Section 4(b), 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 4(b).
8. ADVANCE NOTICE PROVISIONS FOR ELECTION OF DIRECTORS. Only persons
who are nominated in accordance with the following procedures shall be eligible
for election as directors of the Corporation. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 8 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 8.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder such stockholder must have (i) given timely notice
thereof in proper written form to the Secretary of the Corporation, (ii) if the
stockholder, or the beneficial owner on whose behalf
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any such nomination is made, has provided the Corporation with a Nomination
Solicitation Notice (as defined herein), such stockholder or beneficial owner
must have delivered a proxy statement and form of proxy to holders of a
percentage of the Corporation's voting shares reasonably believed by such
stockholder or beneficial holder to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must have included in
such materials the Nomination Solicitation Notice and (iii) if no Nomination
Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such nomination must not
have solicited a number of proxies sufficient to have required the delivery of
the Nomination Solicitation Notice under this section.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
(a) in the case of an annual meeting, not less than 90 days nor more than 130
days prior to the date of the anniversary of the previous year's annual meeting;
provided, however, that in the event the annual meeting is scheduled to be held
on a date more than 30 days prior to or delayed by more than 60 days after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the later of the close of business 90 days prior to such
annual meeting or the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs (and in no event shall the
public announcement of an adjournment of the meeting commence a new time period
for a giving of a stockholder's notice under this Section).
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder; and (c)
whether such stockholder or beneficial owner has delivered or intends to deliver
a proxy statement and form of proxy to holders of a sufficient number of holders
of the Corporation's voting shares to elect
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such nominee or nominees (an affirmative statement of such intent, a "Nomination
Solicitation Notice"). Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 8. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
9. STOCKHOLDER PROPOSALS; BUSINESS TO BE TRANSACTED AT MEETINGS. At any
special meeting of the stockholders, only such business shall be conducted as
shall have been brought before the meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof). No business may be
transacted at an annual meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 9 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set forth in this Section 9.
In addition to any other applicable requirements (including, without
limitation, Securities and Exchange Commission rules and regulations with
respect to inclusion of stockholder proposals in the Corporation's annual Proxy
Statement), for business to be properly brought before an annual meeting by a
stockholder, (i) such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation, (ii) such business must
be a proper matter for stockholder action under the General Corporation Law,
(iii) if the stockholder, or the beneficial owner on whose behalf any such
proposal is made, has provided the Corporation with a Solicitation Notice (as
defined herein), such stockholder or beneficial owner must, in the case of a
proposal, have delivered a proxy statement and form of proxy to holders of at
least the percentage of the Corporation's voting shares required under
applicable law to carry any such proposal, and must have included in such
materials the Solicitation Notice and (iv) if no Solicitation Notice relating
thereto has been timely provided pursuant to this section, the stockholder or
beneficial owner proposing such nomination must not have solicited a number of
proxies sufficient to have required the delivery of the Solicitation Notice
under this section.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than 90 days nor more than 130 days prior to the date of the
anniversary of the previous year's annual meeting; provided, however, that in
the event the annual meeting is scheduled to be held on a date more than 30 days
prior to or delayed by more than 60 days after such anniversary date, notice by
the stockholder in order to be timely must be so received not later than the
later of the close of business 90 days prior to such annual meeting or the tenth
day following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was first
made by the Corporation. In no event shall the public announcement of
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an adjournment of an annual meeting commence a new time period for a giving of a
stockholder's notice under this Section 9.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business, (v) the names and addresses of other stockholders known by the
stockholder proposing such business to support the proposal, and the class and
number of shares of the Corporation's capital stock known to be beneficially
owned by such other stockholders, (vi) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting, and (vii) whether such stockholder or beneficial
owner has delivered or intends to deliver a proxy statement and form of proxy to
holders of at least the percentage of the Corporation's voting shares required
to carry the proposal (an affirmative statement of such intent, a "Solicitation
Notice").
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 9, provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 9 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The property, affairs and business of the
Corporation shall be managed by the Board of Directors of the Corporation. The
use of the phrase "whole board" herein refers to the total number of directors
which the Corporation would have if there were no vacancies.
2. QUALIFICATION AND NUMBER. The property, affairs and business of the
Corporation shall be managed by its Board of Directors, consisting of not less
than three nor more than fifteen persons, with the exact number of directors
determined from time to time by the Board of Directors. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware.
The directors shall be divided into three classes. The first class
(Class I) shall consist of five directors and the term of office of such class
shall expire at the next Annual Meeting of Stockholders in 1978. The second
class (Class II) shall consist of five directors and the term of office of such
class shall expire at the Annual Meeting of Stockholders in 1979. The third
class
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(Class III) shall consist of five directors and the term of office of such
third class shall expire at the Annual Meeting of Stockholders in 1980. At the
Annual Meeting of Stockholders in 1977, five directors shall be elected as Class
III directors whose term of office shall expire at the Annual Meeting of
Stockholders in 1980, one director shall be elected as a Class I director whose
term of office shall expire at the Annual Meeting of Stockholders in 1978, and
one director shall be elected as a Class II director whose term of office shall
expire at the Annual Meeting of Stockholders in 1979. Should the number of
directors be increased or decreased in the future, no class of directors shall
have more than one director more than any other class of directors. At each
annual election commencing at the Annual Meeting of Stockholders in 1978, the
successors to the class of directors whose term expires at that time shall be
elected to hold office for the term of three years to succeed those whose term
expires, so that the term of office of one class of directors shall expire in
each year. Each director shall hold office for the term for which he is elected
or appointed or until his successor shall be elected or qualified, or until his
death, removal or resignation. Newly created directorships resulting from an
increase in the number of directors by action of the Board of Directors, may be
filled by the Board of Directors at the meeting at which the number of directors
is increased, or any subsequent meeting of the directors, by a majority of the
directors then in office, although less than a quorum, or by the stockholders at
a meeting called for the purpose of electing directors.
3. ELECTION, TERM AND VACANCIES. The first Board of Directors, unless
the members thereof shall have been named in the certificate of incorporation,
shall be elected by the incorporator or incorporators and shall hold office
until the first Annual Meeting of Stockholders and until their successors have
been elected and qualified or until their earlier resignation or removal and
shall serve staggered terms as provided for in ARTICLE II, Paragraph 2 of these
Bylaws. Thereafter, directors who are elected at an annual meeting of
stockholders, and directors who are elected or appointed in the interim to fill
vacancies and newly created directorships, shall hold office until the term of
office of the class to which they are elected or appointed has expired and until
their successors have been elected and qualified or until their earlier
resignation, removal or death. Any director may resign at any time upon written
notice to the Corporation. No decrease in the number of authorized directors
shall shorten the term of any incumbent director. Vacancies resulting from the
resignation, removal or death of a director may be filled by the vote of a
majority of the remaining directors then in office, although less than a quorum
or by the sole remaining director.
4. MEETINGS.
- Time. Meetings shall be held at such time as the Board shall fix
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
- Place. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
- Call. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, or the President, or of a majority of
the directors in office.
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- Notice or Actual or Constructive Waiver. Regular meetings of the
Board of Directors shall be held at such place or places, on such date or dates,
and at such time or times as shall have been established by the Board of
Directors and publicized among all directors. A notice of each regular meeting
shall not be required. Special meetings of the Board of Directors may be called
by the Chairman of the Board, the President or by a majority of the whole board
and shall be held at such place, on such date, and at such time as they or he or
she shall fix. Notice of the place, date and time of each such special meeting
shall be given to each director (unless waived by such director) by mailing
written notice not less than five days before the meeting or by telephone, by
facsimile or other electronic transmission of the same not less than 24 hours
before the meeting. Unless otherwise indicated in the notice thereof, any and
all business may be transacted at a special meeting.
- Participation in Meetings by Conference Telephone. Members of the
Board of Directors, or of any committee thereof, may participate in a meeting of
such Board or committee by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other and such participation shall constitute presence in person at such
meeting.
- Quorum and Action. A majority of the whole board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole board. A majority
of the directors present, whether or not a quorum is present, may adjourn a
meeting to another time and place. Except as herein otherwise provided, and
except as otherwise provided by the General Corporation Law, the act of the
Board shall be the act by vote of a majority of the directors present at a
meeting, a quorum being present. The quorum and voting provisions herein stated
shall not be construed as conflicting with any provisions of the General
Corporation Law and these Bylaws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board.
- Chairman of the Meeting. The Chairman of the Board, if present and
acting, shall preside at all meetings. Otherwise, the President, if present and
acting, or any other Director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any and all of the directors may be removed
only for cause by the stockholders. One or more of the directors may be removed
only for cause by the Board of Directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, including an
Executive Committee, each committee to consist of one or more of the directors
of the Corporation. The Board 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. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Corporation
subject to the provisions of the General Corporation Law, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. In the
absence or disqualification of any member of any such committee or committees,
the member or members thereof present at any meeting
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and not disqualified from voting, whether or not he, she 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.
7. ACTION IN WRITING. Any action required or permitted to be taken at
any meeting of the Board of Directors or 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 or committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
ARTICLE III
OFFICERS
The directors shall elect a Chairman of the Board, a President, a
Secretary, and a Treasurer, and may elect a Vice-Chairman thereof, and one or
more Vice-Presidents, Assistant Secretaries, and Assistant Treasurers, and may
elect or appoint such other officers and agents as are desired. The President
may but need not be a director. Any number of offices may be held by the same
person. In the absence, disqualification, death or removal of the Chairman of
the Board, the Vice Chairman, the President, or any other director chosen by the
Board, shall serve in lieu of the said Chairman. The Chairman of the Board shall
be an ex officio member of all standing committees unless otherwise provided in
the resolution appointing such committees. The Chairman of the Board shall have
power to call meetings of the shareholders and directors of the Corporation and
shall have the power to act as chairman of such meetings.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of stockholders and until his or her successor
has been elected and qualified or until earlier resignation or removal. Any
officer may resign at any time upon written notice.
The Chairman, if any, of the Board of Directors shall preside, if
present, at all meetings of stockholders and directors. Unless the Board
specifies another officer, the Chairman of the Board shall be the chief
executive officer of the Corporation. During the absence or disability of the
President, the Chairman shall exercise all the powers and discharge all the
duties of the President.
The President, in the absence of the Chairman of the Board, shall
preside, if present, at all meetings of stockholders and directors. Unless the
Board specifies another officer, the President shall be the chief operating
officer of the Corporation. The President shall make reports to the Board of
Directors and stockholders and perform all such other duties as are incident to
his or her office or are properly required of him or her by the Board of
Directors.
The Vice Presidents, during the absence or disability of the President
and the Chairman of the Board of Directors, in the order designated by the Board
of Directors, shall exercise all the functions of the President. Each Vice
President shall have such powers and discharge such duties as may be assigned to
him or her from time to time by the Board of Directors.
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The Secretary shall issue notice of all meetings of stockholders and
directors, shall keep minutes of all meetings, shall have charge of the seal of
the Corporation and the corporate books, and shall make such reports and perform
such other duties as are incident to his or her office, or are properly required
of him or her by the Board of Directors.
The Assistant Secretaries, in order of their seniority, 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 as the Board of
Directors shall prescribe.
The Treasurer shall have the custody of all monies and securities of
the Corporation and shall keep regular books of account. The Treasurer shall
disburse the funds of the Corporation in payment of the just demands against the
Corporation or as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Board of Directors from
time to time as may be required of him or her, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation. The
Treasurer shall perform all duties incident to the office or that are properly
required of him or her by the Board of Directors.
The Assistant Treasurers, in the order of their seniority, 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 as the Board of
Directors shall prescribe.
In the case of absence or inability to act of any officer of the
Corporation and of any person herein authorized to act in his or her place, the
Board of Directors may, from time to time, delegate the powers or duties of such
officer to any other officer or any director or other person whom it may select.
Vacancies in any office arising from any cause may be filled by the
directors at any regular or special meeting.
The Board of Directors may appoint such other officers and agents as it
shall deem necessary or expedient, 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.
The Board of Directors may remove any officer for cause or without
cause.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors
shall prescribe. The Corporation seal may be a facsimile seal, if the Board
shall so determine.
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ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be subject
to change, by the Board of Directors.
ARTICLE VI
AMENDMENT AND REPEAL OF BYLAWS
These Bylaws may be amended or repealed and new Bylaws may be adopted
by the Board of Directors, by the vote of a majority of the whole board, or by
the stockholders, by the vote of the holders of a majority of the shares
outstanding and entitled to vote.
ARTICLE VII
INDEMNIFICATION
(a) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any 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 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 General Corporation Law, 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
attorney's fees, judgments, fines, ERISA excise taxes or penalties and 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, executors and administrators; provided,
however, that, except as provided in paragraph (c) of this Article VII hereof
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) was authorized by the Board of Directors of the Corporation.
(b) Right to Advancement of Expenses. In addition to the right to
indemnification conferred in paragraph (a) of this Article VII, an indemnitee
shall also have the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification is applicable
in advance of its final disposition (hereinafter an "advancement of expenses;"
provided, however, that, if the General Corporation Law 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
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limitation, service to an employee benefit plan) shall be made only upon the
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
Article VII or otherwise.
(c) Right of Indemnitee to Bring Suit. If a claim under paragraph (a)
or (b) of this Article VII is not paid in full by the Corporation within sixty
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 twenty 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 an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In 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 the indemnitee has not met any applicable standard for
indemnification set forth in the General Corporation Law. In any suit brought 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 any applicable standard
for indemnification set forth in the General Corporation Law. Neither the
failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its
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 General Corporation Law, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its 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 brought 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 Article VII or otherwise shall be on the
Corporation.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article VII shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the certificate of incorporation, by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
(e) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or 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 General Corporation Law.
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(f) Nature of Rights. The rights conferred upon indemnitees in this
Article VII shall be contract rights and such rights 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, executors and administrators.
Any amendment, alteration or repeal of this Article VII that adversely affects
any right of an indemnitee or his or her successors shall be prospective only
and shall not limit or eliminate any such right with respect to any proceeding
involving any occurrence or alleged occurrence of any action or omission to act
that took place prior to such amendment or repeal.
ARTICLE VIII
RECORDS
The books and records of the Corporation may be kept outside the State
of Delaware at such place or places as may from time to time be designated by
the Board of Directors.
CERTIFICATION
I, Carolyn Mitchell, hereby certify that the foregoing is a true and
complete copy of the Amended and Restated Bylaws of Sysco Corporation adopted by
its Board of Directors on February 8, 2002.
/s/ CAROLYN MITCHELL
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Secretary
[CORPORATE SEAL]
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