EXHIBIT 3.4
AMENDED & RESTATED BY-LAWS
OF
CARDINAL FOODS, INC.
Table of Contents
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Article I: Meetings of Stockholders
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Section 1. Annual Meetings ....................................... 1
Section 2. Special Meetings ...................................... 1
Section 3. Notices of Meetings ................................... 1
Section 4. Place of Meetings ..................................... 1
Section 5. Quorum ................................................ 1
Section 6. Record Date ........................................... 1
Section 7. Proxies ............................................... 2
Article II: Directors
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Section 1. Number of Directors ................................... 2
Section 2. Election of Directors ................................. 2
Section 3. Term of Office ........................................ 2
Section 4. Removal ............................................... 2
Section 5. Vacancies ............................................. 2
Section 6. Quorum and Transaction of Business .................... 3
Section 7. Annual Meeting ........................................ 3
Section 8. Regular Meetings ...................................... 3
Section 9. Special Meetings ...................................... 3
Section 10. Notice of Annual or Special Meetings .................. 3
Section 11. Compensation .......................................... 3
Article III: Committees
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Section 1. Executive Committee ................................... 4
Section 2. Meetings of Executive Committee ....................... 4
Section 3. Other Committees ...................................... 4
Article IV: Officers
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Section 1. General Provisions .................................... 5
Section 2. Term of Office ........................................ 5
Article V: Duties of Officers
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Section 1. Chairman of the Board ................................. 5
Section 2. President ............................................. 5
Section 3. Chief Executive Officer ............................... 5
Section 4. Vice President ........................................ 5
Section 5. Secretary ............................................. 6
Section 6. Treasurer ............................................. 6
Section 7. Assistant and Subordinate Officers .................... 6
Section 8. Duties of Officers May Be Delegated ................... 6
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Article VI: Indemnification and Insurance
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Section 1. Indemnification in Non-Derivative Actions ................................... 6
Section 2. Indemnification in Derivative Actions ....................................... 7
Section 3. Indemnification as Matter of Right .......................................... 7
Section 4. Determination of Conduct .................................................... 7
Section 5. Advance Payment of Expenses ................................................. 7
Section 6. Nonexclusivity .............................................................. 7
Section 7. Liability Insurance ......................................................... 7
Section 8. Meaning of Certain Terms .................................................... 8
Section 9. Continuation of Indemnification and Advancement of Expenses ................. 8
Article VII: Certificates for Shares
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Section 1. Form and Execution .......................................................... 8
Section 2. Registration of Transfer .................................................... 9
Section 3. Lost, Destroyed or Stolen Certificates ...................................... 9
Section 4. Registered Shareholders ..................................................... 9
Article VIII: Fiscal Year .......................................................................... 9
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Article IX: Seal ................................................................................... 9
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Article X: Amendments .............................................................................. 9
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Article XI: Officers and Directors--Liability and Indemnity; Transactions with Corporation
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Section 1. Definitions Applicable to Article XI ........................................ 10
Section 2. Director and Officer Liability Limitations .................................. 11
Section 3. Mandatory Indemnification ................................................... 11
Section 4. Procedural Requirements for Determination That Indemnification is
Proper ...................................................................... 12
Section 5. Advancement of Expenses ..................................................... 14
Section 6. Right of Director or Officer to Bring Suit .................................. 14
Section 7. Permissible Considerations .................................................. 14
Section 8. Reliance by Directors or Officers ........................................... 15
Section 9. Insurance ................................................................... 15
Section 10. Severability and Intent ..................................................... 15
Section 11. Notice to the Corporation ................................................... 15
Section 12. Indemnification and Allowance of Expenses of Certain Others ................. 15
Section 13. Amendment ................................................................... 15
Section 14. Nonexclusivity of Article XI ................................................ 16
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AMENDED AND RESTATED BY-LAWS
OF
CARDINAL FOODS, INC.
ARTICLE I
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of stockholders shall be
held at such time and on such date during the first six months of each fiscal
year (commencing in 1987) as may be fixed by the Board of Directors and stated
in the notice of the meeting, for the election of Directors, the consideration
of reports to be laid before such meeting and the transaction of such other
business as may properly come before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders shall
be called upon the written request of the Chairman of the Board of Directors,
the President, the Directors by action at a meeting, a majority of the Directors
acting without a meeting, or of the holders of shares entitling them to exercise
twenty-five percent (25%) of the voting power of the Corporation entitled to
vote thereat. Calls for such meetings shall specify the purposes thereof. No
business other than that specified in the call shall be considered at any
special meeting.
Section 3. Notices of Meetings. Unless waived, written notice of each
annual or special meeting stating the time, place, and the purposes thereof
shall be given by personal delivery or by mail to each stockholder of record
entitled to vote at or entitled to notice of the meeting, not more than sixty
(60) days nor less than ten (10) days before any such meeting. If mailed, such
notice shall be directed to the stockholder at his address as the same appears
upon the records of the Corporation. Any stockholder, either before or after any
meeting, may waive any notice required to be given by law or under these
Regulations.
Section 4. Place of Meetings. Meetings of stockholders shall be held in
the City of Columbus, State of Ohio, at the principal office of the Corporation
in that City unless the Board of Directors determines that a meeting shall be
held at some other place within or without the State of Delaware and causes the
notice thereof to so state.
Section 5. Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Corporation entitled to vote at any meeting,
present in person or by proxy, shall constitute a quorum for the transaction of
business to be considered at such meeting; provided, however, that no action
required by law or by the Certificate of Incorporation or these By-Laws to be
authorized or taken by the holders of a designated proportion of the shares of
any particular class or of each class may be authorized or taken by a lesser
proportion. The holders of a majority of the voting shares represented at a
meeting, whether or not a quorum is present, may adjourn such meeting from time
to time, until a quorum shall be present.
Section 6. Record Date. The Board of Directors may fix a record date
for any lawful purpose, including without limiting the generality of the
foregoing, the determination of stockholders entitled to (i) receive notice of
or to vote at any meeting, (ii) receive payment of any dividend or other
distribution or allotment of any rights, (iii) receive or exercise rights of
purchase or of subscription for, or exchange or conversion of, shares or other
securities, subject to any contract right with respect thereto, or (iv)
participate in the execution of written consents, waivers or releases. Said
record date shall be not more than sixty (60) days nor less than ten (10) days
preceding the date of such meeting, the date fixed for the
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payment of any dividend or distribution or the date fixed for the receipt or the
exercise of rights, as the case may be.
If a record date shall not be fixed, the record date for the
determination of stockholders who are entitled to notice of, or who are entitled
to vote at, a meeting of stockholders, shall be the close of business on the
date next preceding the day on which notice is given, or the close of business
on the date next preceding the day on which the meeting is held, as the case may
be.
Section 7. Proxies. A person who is entitled to attend a stockholders'
meeting, to vote thereat, or to execute consents, waivers or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers and
releases, and exercise any of his other rights, by proxy or proxies appointed by
a writing signed by such person.
ARTICLE II
Directors
Section 1. Number of Directors. Until changed in accordance with the
provisions of this section, the number of Directors of the Corporation shall be
one (1). Subject to the limitation that such number of Directors shall be not
less than one (1) nor more than fifteen (15), such number may be changed from
time to time as determined by resolution adopted by a majority of the Directors
then in office.
Section 2. Election of Directors. Directors shall be elected at the
annual meeting of stockholders, but when the annual meeting is not held or
Directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election shall be by ballot whenever
requested by any stockholder entitled to vote at such election; but, unless such
request is made, the election may be conducted in any manner approved at such
meeting.
At each meeting of stockholders for the election of Directors, the
persons receiving the greatest number of votes shall be Directors.
Section 3. Term of Office. Each Director shall hold office until the
annual meeting next succeeding his election and until his successor is elected
and qualified, or until his earlier resignation, removal from office or death.
Section 4. Removal. All the Directors, or all the Directors of a
particular class, or any individual Director may be removed from office, without
assigning any cause, by the vote of the holders of a majority of the voting
power entitling them to elect Directors in place of those to be removed,
provided that unless all the Directors, or all the Directors of a particular
class, are removed, no individual Director shall be removed in case the votes of
a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all the Directors, or all the Directors of
a particular class, as the case may be, would be sufficient to elect at least
one Director. In case of any such removal, a new Director may be elected at the
same meeting for the unexpired term of each Director removed.
Section 5. Vacancies. Vacancies in the Board of Directors may be filled
by a majority vote of the remaining Directors until an election to fill such
vacancies is had. Stockholders entitled to elect Directors shall have the right
to fill any vacancy on the Board (whether the same has been temporarily filled
by the remaining Directors or not) at any meeting of the stockholders called for
that purpose, and any Directors elected at any such meeting of stockholders
shall serve until the next annual election of Directors and until their
successors are elected and qualified.
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Section 6. Quorum and Transaction of Business. A majority of the whole
authorized number of Directors shall constitute a quorum for the transaction of
business, except that a majority of the Directors in office shall constitute a
quorum for filling a vacancy on the Board. Whenever less than a quorum is
present at the time and place appointed for any meeting of the Board, a majority
of those present may adjourn the meeting from time to time, until a quorum shall
be present. The act of a majority of the Directors present at a meeting at which
a quorum is present shall be the act of the Board.
Section 7. Annual Meeting. Annual meetings of the Board of Directors
shall be held immediately following annual meetings of the stockholders, or as
soon thereafter as is practicable. If no annual meeting of the stockholders is
held, or if Directors are not elected thereat, then the annual meeting of the
Board of Directors shall be held immediately following any special meeting of
the stockholders at which Directors are elected, or as soon thereafter as is
practicable.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places, within or without the State of Delaware,
as the Board of Directors may, by resolution or by-law, from time to time,
determine. The Secretary shall give notice of each such resolution or by-law to
any Director who was not present at the time the same was adopted, but no
further notice of such regular meeting need be given.
Section 9. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, any vice President,
or any two members of the Board of Directors, and shall be held at such times
and places, within or without the State of Delaware, as may be specified in such
call.
Section 10. Notice of Annual or Special Meetings. Notice of the time
and place of each annual or special meeting shall be given to each Director by
the Secretary or by the person or persons calling such meeting. Such notice need
not specify the purpose or purposes of the meeting and may be given in any
manner or method and at such time so that the Director receiving it may have
reasonable opportunity to participate in the meeting. Such notice shall, in all
events, be deemed to have been properly and duly given if mailed at least
forty-eight (48) hours prior to the meeting and directed to the residence of
each Director as shown upon the Secretary's records and, in the event of a
meeting to be held through the use of communications equipment, if the notice
sets forth the telephone number at which each Director may be reached for
purposes of participation in the meeting as shown upon the Secretary's records
and states that the Secretary must be notified if a Director desires to be
reached at a different telephone number. The giving of notice shall be deemed to
have been waived by any Director who shall participate in such meeting and may
be waived, in a writing, by any Director either before or after such meeting.
Section 11. Compensation. The Directors, as such, shall be entitled to
receive such reasonable compensation for their services as may be fixed from
time to time by resolution of the Board, and expenses of attendance, if any, may
be allowed for attendance at each annual, regular or special meeting of the
Board. Nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of the executive committee or of any other standing or special
committee may by resolution of the Board be allowed such compensation for their
services as the Board may deem reasonable, and additional compensation may be
allowed to Directors for special services rendered.
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ARTICLE III
Committees
Section 1. Executive Committee. The Board of Directors may from time to
time, by resolution passed by a majority of the entire Board, create an
executive committee consisting of one or more Directors, the members of which
shall be elected by the Board of Directors to serve during the pleasure of the
Board. If the Board of Directors does not designate a chairman of the executive
committee, the executive committee shall elect a chairman from its own number.
Except as otherwise provided herein and in the resolution creating an executive
committee, such committee shall, during the intervals between the meetings of
the Board of Directors, possess and may exercise all of the powers of the Board
of Directors in the management of the business and affairs of the Corporation
and may authorize the seal of the Corporation to be fixed to all papers which
may require it, but no such committee shall have the power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the by-laws of the Corporation. Unless
otherwise specifically provided in the resolution of the Board of Directors or
the Certificate of Incorporation, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. The executive
committee shall keep full records and accounts of its proceedings and
transactions. All action by the executive committee shall be reported to the
Board of Directors at its meeting next succeeding such action and shall be
subject to control, revision and alteration by the Board of Directors, provided
that no rights of third persons shall be prejudicially affected thereby. The
Board of Directors may designate one or more Directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
Section 2. Meetings of Executive Committee. Subject to the provisions
of these Regulations, the executive committee shall fix its own rules of
procedure and shall meet as provided by such rules or by resolutions of the
Board of Directors, and it shall also meet at the call of the President, the
chairman of the executive committee or any two members of the committee. Unless
otherwise provided by such rules or by such resolutions, the provisions of
Section 10 of Article II relating to the notice required to be given of meetings
of the Board of Directors shall also apply to meetings of the executive
committee. A majority of the executive committee shall be necessary to
constitute a quorum. The executive committee may act in a writing, or by
telephone with written confirmation, without a meeting, but no such action of
the executive committee shall be effective unless concurred in by all members of
the committee.
Section 3. Other Committees. The Board of Directors may by resolution
provide for such other standing or special committees as it deems desirable, and
discontinue the same at pleasure. Each such committee shall have such powers and
perform such duties, not inconsistent with law, as may be delegated to it by the
Board of Directors. The provisions of Section 1 and Section 2 of this Article
shall govern the appointment and action of such committees so far as the same
are consistent with such appointment and unless otherwise provided by the Board
of Directors. Vacancies in such committees shall be filled in the same manner as
provided in Section 1 of this Article.
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ARTICLE IV
Officers
Section 1. General Provisions. The Board of Directors shall elect a
President, such number of Vice Presidents as the Board may from time to time
determine, a Secretary and a Treasurer and, in its discretion, a Chairman of the
Board of Directors. The Board of Directors may from time to time create such
offices and appoint such other officers, subordinate officers and assistant
officers as it may determine. The officers need not be chosen from among the
members of the Board of Directors. Any two of such offices, other than that of
President and Vice President, may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity.
Section 2. Term of Office. The officers of the Corporation shall hold
office during the pleasure of the Board of Directors, and, unless sooner removed
by the Board of Directors, and until their successors are chosen and qualified.
The Board of Directors may remove any officer at any time, with or without
cause. A vacancy in any office, however created, shall be filled by the Board of
Directors.
ARTICLE V
Duties of Officers
Section 1. Chairman of the Board. The chairman of the board, if one be
elected, shall preside at all meetings of the stockholders and of the Board of
Directors and shall have such other powers and duties as may be prescribed by
the Board of Directors.
Section 2. President. The President shall exercise supervision over the
business of the Corporation and over its several officers, subject, however, to
the control of the Board of Directors and the Chief Executive Officer (provided
he is not the Chief Executive Officer). In the absence of the Chairman of the
Board, or if a Chairman of the Board shall not have been elected, he shall
preside at meetings of the stockholders and of the Board of Directors. He shall
have authority to sign all certificates for shares and all deeds, mortgages,
bonds, agreements, notes and other instruments requiring his signature; and
shall have such other powers and duties as the Board of Directors may from time
to time assign to him.
Section 3. Chief Executive Officer. The Board of Directors shall
designate the Chairman of the Board or the President as Chief Executive Officer.
Such Chief Executive Officer shall have the general direction of the affairs of
the Company, subject to the Board of Directors. He may appoint and discharge
agents and employees, and perform such other duties as are incident to his
office or delegate to him by the Board of Directors or which are or may at any
time be authorized or required by law. In the absence or disability of the
officer designated as Chief Executive Officer, the other aforementioned officer
(Chairman of the Board or President) shall perform any and all duties of the
Chief Executive Officer.
Section 4. Vice President. The Vice Presidents, if they are elected,
shall have such powers and duties as may from time to time be assigned to them
by the Board of Directors, the Chief Executive officer or the President. At the
request of the President, or in the case of his absence or disability, the Vice
President designated by the President (or in the absence of such designation,
the Vice President designated by the Board or the Chief Executive Officer) shall
perform all the duties of the President and, when so acting, shall have all the
powers of the President. The authority of Vice Presidents to sign in the name of
the Corporation certificates for shares and deeds, mortgages, bonds agreements,
notes and other instruments shall be coordinate with like authority of the
President.
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Section 5. Secretary. The Secretary shall keep minutes of all the
proceedings of the stockholders and Board of Directors and shall make proper
record of the same, which shall be attested by him; shall have authority to
execute and deliver certificates as to any of such proceedings and any other
records of the Corporation; shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes and other instruments
to be executed by the Corporation which require his signature; shall give notice
of meetings of stockholders and Directors; shall produce on request at each
meeting of stockholders a certified list of stockholders arranged in
alphabetical order; shall keep such books and records as may be required by law
or by the Board of Directors; and, in general, shall perform all duties incident
to the office of Secretary and such other duties as may from time to time be
assigned to him by the Board of Directors, the Chief Executive Officer or the
President.
Section 6. Treasurer. The Treasurer shall have general supervision of
all finances; he shall receive and have in charge all money, bills, notes,
deeds, leases, mortgages and similar property belonging to the Corporation, and
shall do with the same as may from time to time be required by the Board of
Directors. He shall cause to be kept adequate and correct accounts of the
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, stated capital and shares,
together with such other accounts as may be required, and upon the expiration of
his term of office shall turn over to his successor or to the Board of Directors
all property, books, papers and money of the Corporation in his hands; and shall
have such other powers and duties as may from time to time be assigned to him by
the Board of Directors, the Chief Executive Officer or the President.
Section 7. Assistant and Subordinate Officers. The Board of Directors
may appoint such assistant and subordinate officers as it may deem desirable.
Each such officer shall hold office during the pleasure of the Board of
Directors, and perform such duties as the Board of Directors, the Chief
Executive Officer or the President may prescribe.
The Board of Directors may, from time to time, authorize any officer to
appoint and remove subordinate officers, to prescribe their authority and
duties, and to fix their compensation.
Section 8. Duties of Officers May be Delegated. In the absence of any
officer of the Corporation, or for any other reason the Board of Directors may
deem sufficient, the Board of Directors may delegate, for the time being, the
powers or duties, or any of them, of such officers to any other officer or to
any Director.
ARTICLE VI
Indemnification and Insurance
Section 1. Indemnification in Non-Derivative Actions. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party, to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than an action
by or in the right of the Corporation, by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses, including attorneys' fees, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or
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upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Section 2. Indemnification in Derivative Actions. The Corporation shall
indemnify any person who was or is a party, or is threatened to be made a party
to any threatened, pending, or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless, and only to the extent that the Court of Chancery, or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court of Chancery or such other court shall deem proper.
Section 3. Indemnification as Matter of Right. To the extent that a
director, officer, employee, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in Sections
1 and 2 of this Article VI, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection therewith.
Section 4. Determination of Conduct. Any indemnification under Sections
1 and 2 of this Article VI, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 1 and 2 of this Article VI. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of Directors of the
Corporation who were not parties to such action, suit, or proceeding, or (b) if
such a quorum is not obtainable or even if obtainable a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or (c)
by the stockholders.
Section 5. Advance Payment of Expenses. Expenses incurred in defending
any civil or criminal action, suit, or proceeding may be paid by the Corporation
in advance of the final disposition of such action, suit, or proceeding upon
receipt of an undertaking by or on behalf of the director, officer, employee, or
agent to repay such amount, if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article VI.
Section 6. Nonexclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
VI shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors, or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office.
Section 7. Liability Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred
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by him in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against such liability
under the provisions of this Article VI or of Section 145 of the Delaware
Corporation Law.
Section 8. Meaning of Certain Terms. For purposes of this Article VI,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the
provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
For purposes of this Article VI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such Director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VI.
Section 9. Continuation of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
ARTICLE VII
Certificates for Shares
Section 1. Form and Execution. Certificates for shares, certifying the
number of fully paid shares owned, shall be issued to each stockholder in such
form as shall be approved by the Board of Directors. Such certificates shall be
signed by the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer; provided, however, that if
such certificates are countersigned by a transfer agent or registrar, the
signatures of any of said officers and the seal of the Corporation upon such
certificates may be facsimiles, engraved, stamped or printed. If any officer or
officers, who shall have signed, or whose facsimile signature shall have been
used, printed or stamped on any certificate or certificates for shares, shall
cease to be such officer or officers, because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates, if authenticated by the
endorsement thereon of the signature of a transfer agent or registrar, shall
nevertheless be conclusively deemed to have been adopted by the Corporation by
the use and delivery thereof and shall be as effective in all respects as though
signed by a duly elected, qualified and authorized officer or officers, and as
though the person or persons who signed such certificate or certificates, or
whose facsimile signature or signatures shall have been used thereon, had not
ceased to be an officer or officers of the Corporation.
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Section 2. Registration of Transfer. Any certificate for shares of the
Corporation shall be transferable in person or by attorney upon the surrender
thereof to the Corporation or any transfer agent therefor (for the class of
shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Corporation or such transfer
agent may require as to the genuineness and effectiveness of each necessary
endorsement.
Section 3. Lost, Destroyed or Stolen Certificates. Anew share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Corporation which is alleged to have been lost,
destroyed or wrongfully taken upon (i) the execution and delivery to the
Corporation by the person claiming the certificate to have been lost, destroyed
or wrongfully taken of an affidavit of that fact, specifying whether or not, at
the time of such alleged loss, destruction or taking, the certificate was
endorsed, and (ii) the furnishing to the Corporation of indemnity and other
assurances satisfactory to the Corporation and to all transfer agents and
registrars of the class of shares represented by the certificate against any and
all losses, damages, costs, expenses or liabilities to which they or any of them
may be subjected by reason of the issue and delivery of such new certificate or
certificates or in respect of the original certificate.
Section 4. Registered Stockholders. A person in whose name shares are
of record on the books of the Corporation shall conclusively be deemed the
unqualified owner and holder thereof for all purposes and to have capacity to
exercise all rights of ownership. Neither the Corporation nor any transfer agent
of the Corporation shall be bound to recognize any equitable interest in or
claim to such shares on the part of any other person, whether disclosed upon
such certificate or otherwise, nor shall they be obliged to see to the execution
of any trust or obligation.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall end on the last Saturday in
March in each year or on such other date as may be fixed from time to time by
the Board of Directors.
ARTICLE IX
Seal
The Board of Directors may provide a suitable seal containing the name
of the Corporation. If deemed advisable by the Board of Directors, duplicate
seals may be provided and kept for the purposes of the Corporation.
ARTICLE X
Amendments
These By-Laws may be amended, or new by-laws may be adopted, by the
Board of Directors; provided, that any by-law, other than an initial by-law,
which divides the Directors into classes having staggered terms shall be adopted
at any meeting of stockholders called for such purpose by the affirmative vote
of, or without a meeting by the written consent of, the holders of shares
entitling them to exercise a majority of the voting power of the Corporation on
such proposal.
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ARTICLE XI.
Officers And Directors
Liability And Indemnity; Transactions With Corporation
Section 1. Definitions Applicable to Article XI.
(a) "Applicable Corporate Law" shall mean those statutes comprising
the general corporation law of the jurisdiction in which the Corporation is
incorporated, as amended from time to time.
(b) "Breach of Duty" shall mean conduct of a Director or Officer
constituting any one or more of the following:
(1) A willful failure to deal fairly with the Corporation or its
stockholders in connection with a matter in which the Director or Officer has a
material conflict of interest.
(2) A violation of criminal law, unless the Director or Officer
had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful.
(3) A transaction from which the Director or Officer derived an
improper personal profit.
(4) Willful misconduct.
(c) "Claim" means any threatened or asserted claim or cause of
action involving actual or potential liability of a Director or Officer arising
from any act or omission of such person alleged or determined to have been
negligent, grossly negligent or intentionally tortious or to have violated any
state or federal securities laws (including any rule or regulation thereunder)
or the Employee Retirement Income Security Act of 1974 or any other foreign,
federal, state or local law, rule or regulation which is asserted or brought by
or in the right of the Corporation or by any governmental authority or any other
person or entity.
(d) "Director or Officer" means any of the following:
(1) A natural person who is or was: (i) a director (elected or
appointed by the stockholders or Board of Directors); or (ii) an officer
(elected or appointed by the Board of Directors) of the Corporation.
(2) A natural person who, while such a director or officer of
the Corporation, is or was serving either pursuant to the Corporation's specific
request or as a result of the nature of such person's duties to the Corporation
as a director, officer, partner, trustee, member of any governing or decision
making committee, employee or agent of another corporation or foreign
corporation, partnership, joint venture, trust or other enterprise.
(3) A natural person who, while such a director or officer of
the Corporation, is or was serving an employee benefit plan because his or her
duties to the Corporation also impose duties
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on, or otherwise involve services by, the person to the plan or to participants
in or beneficiaries of the plan.
(4) Unless the context requires otherwise, the estate or
personal representative of any such director, officer or Trustee.
This term is not intended to include any person who holds a position of
title of Vice President or other apparent office without formal election or
appointment by the Board of Directors.
(e) "Disinterested Majority" shall mean a majority of the Board of
Directors of the Corporation who are not Parties to the subject Proceeding or
any related Proceeding.
(f) "Expenses" includes all reasonable fees, costs, charges,
disbursements, attorneys' fees and any other expenses incurred by a Director or
Officer in connection with a Proceeding if such person was a Party because he or
she is or was a Director or Officer.
(g) "Liability" includes the obligation to pay any sums or perform
any acts pursuant to a settlement, penalty, assessment, forfeiture, fine, or
judgment, including (without limitation) any excise tax assessed with respect to
any employee benefit plan, punitive damages, costs, and expenses.
(h) "Party" includes a natural person who was or is, or who is
threatened to be made, a named defendant or respondent to a Claim in a
Proceeding.
(i) "Proceeding" means any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, arbitration or other
proceeding of any kind, whether formal or informal, in which a Claim is or may
be asserted against a Director or Officer or in which the Director or Officer is
a witness.
Section 2. Director and Officer Liability Limitations. No Director or
Officer shall be liable to the Corporation, its shareholders or any person
asserting rights on behalf of the Corporation or its shareholders, for damages,
settlements, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as an Officer, regardless of whether constituting negligence or other
tortious or otherwise culpable conduct, unless the person asserting liability
proves that the breach or failure to perform constitutes a Breach of Duty. In
addition to and not in limitation of the foregoing, no Officer shall have any
liability for acts or omissions constituting business judgment within the
business judgment rule.
Section 3. Mandatory Indemnification.
(a) Indemnification for Expenses. The Corporation shall indemnify a
Director or Officer for all Expenses incurred (i) in the successful defense of
any Claim (on the merits or otherwise) in a Proceeding and/or (ii) as a
non-Party witness in any Proceeding.
(b) Indemnification for Liability and Expenses. The Corporation shall
indemnify a Director or Officer for all Liability and Expenses with respect to
any Claim against such person in a Proceeding to which such person was a Party
because he or she is or was a Director or Officer, unless such Liability and
Expenses were incurred because the Director or Officer is determined to have
engaged in conduct constituting a Breach of Duty.
(c) Indemnification Exclusion for Collateral Sources. Notwithstanding
the foregoing provision of this Article XI, section 3, indemnification shall not
be required for any Liability or Expenses
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to the extent the same have been paid or are covered under any collectible
insurance policy or are otherwise paid or reimbursed by any third party under a
legal or contractual obligation to do so.
(d) Reliance on Applicable Corporation Law or Bylaw. Without
intending to limit the generality of the indemnification rights provided under
subsections 3(a) and (b) above, the Corporation shall indemnify a Director or
Officer for all Liability and Expenses with respect to any Claim against such
person in a Proceeding which is based, in whole or in part, on such person's
reliance on the validity of any provision of the Applicable Corporation Law or
these Bylaws, even though it is thereafter determined that such provision was
invalid or otherwise could not have justifiably been relied upon.
Section 4. Procedural Requirements for Determination That Indemnification
is Proper.
(a) Written Request for Indemnification. A Director or Officer who
seeks indemnification shall make a written request therefor to the Corporation,
selecting a means for determining his or her right to indemnification as
provided under subsection 4(b) hereof.
(b) Determination of Indemnification. Within 60 days of receipt by
the Corporation of the Director's or Officer's request for indemnification, a
determination shall be made as to whether or not the Director or Officer
requesting indemnification engaged in conduct constituting a Breach of Duty and,
as a result, is or is not entitled to indemnification under this Article. Such
determination shall be made:
(i) by majority vote of a Disinterested Majority if so
designated by the Director or Officer seeking indemnification, if a
Disinterested Majority exists unless the Disinterested Majority elects to obtain
a legal opinion under (ii) below [in which event the Director or Officer shall
then have the option to have such determination made under (iii), (iv) or (v)
below]; or
(ii) by written opinion of independent legal counsel if, (xx) so
designated by the Director or Officer if a Disinterested Majority does not
exist, or (yy) a Disinterested Majority does exist and it elects to have the
determination made by such independent legal counsel and the Director or Officer
does not elect to then have the determination made as otherwise provided
hereunder. Such legal counsel shall be mutually selected by the Director or
Officer and by a Disinterested Majority or, if a Disinterested Majority cannot
be obtained, then by a majority vote of the Board of Directors, including
directors who are parties to the same or related Proceedings;
(iii) by the stockholders if so designated by the Director or
Officer seeking indemnification;
(iv) by a panel of three arbitrators if so designated by the
Director or Officer, which shall be selected from the panel or arbitrators of
the American Arbitration Association in the place where Corporation maintains
its primary place of business; provided, that (xx) one arbitrator shall be
selected by such Director or Officer, the second arbitrator shall be selected y
a Disinterested Majority or, if by a Disinterested Majority cannot be obtained,
then by a majority vote of the Board of Directors, including Directors who are
Parties to the same or related Proceedings, and the third arbitrator shall be
selected by the two previously selected arbitrators, and (yy) in all other
respects, such panel shall be governed by the American Arbitration Association's
then existing Commercial Arbitration Rules, except the fees of all arbitrators
shall be shared equally by the Corporation and the Director or Officer; or
(v) by a court if so designated by the Director or Officer,
pursuant to and in accordance with the Applicable Corporation Law; or
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(vi) as otherwise provided under the Applicable Corporation Law.
The results and basis of the determination made hereunder shall be
submitted in writing to the Corporation and the Director or Officer (the
"Indemnity Decision").
(c) No Presumption Created. The termination of a Proceeding by
judgment, order, settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, create a presumption that indemnification
of the requested amount of Liabilities and Expenses of the Director or Officer
is not required.
(d) Payment of Liabilities and Expenses; Waiver of Claims.
(1) If it is determined that indemnification is required
hereunder, the Corporation shall pay the Director or Officer the entire
requested amount of Liabilities and Expenses (net of any Expenses previously
advanced pursuant to Article XI, section 5), within 10 days of receipt of the
Indemnity Decision, provided, that if it is determined that a Director or
Officer is entitled to indemnification against Liabilities and Expenses incurred
in connection with some Claims, but not as to others (such as if Claims are
asserted to involve some conduct constituting a Breach of Duty and other conduct
which does not), payment of the Liability and Expenses shall be apportioned by
applying the following:
If the Director or Officer sustains Liability for equal dollar
amounts to a given party or person under two or more Claims arising
from the same general conduct, transaction or series of events (even
though divisible for purposes of establishing Liability), one of
which would require indemnification and the other of which would
not, it shall be conclusively presumed that the Liability and all
Expenses related thereto were sustained and incurred solely with
respect to the Claim for which indemnification is required; and if
the Director or Officer sustains Liability and Expenses for
different dollar amounts to a given party or person under two or
more Claims arising from the same general conduct, transaction or
series of events (even though divisible for purposes of establishing
Liability), one of which would require indemnification and the other
of which would not, it shall be conclusively presumed that the
Liability for which indemnification is required is the sole
Liability up to the dollar amount thereof (the "covered Liability")
and the Liability for which indemnification is not required (the
"Non-Covered Liability") is reduced by the amount of the Covered
Liability (resulting in a "Net Non-Covered Liability") and the
Expenses shall be apportioned on the basis of the respective amounts
of the Covered Liability and the Net Non-Covered Liability such that
the Director or Officer shall be entitled to indemnification for the
Covered Liability and the apportioned Expenses attributable to such
Covered Liability. The foregoing shall apply regardless of whether
the Claim for the Non-Covered Liability and the resulting Expenses
in defense thereof occurs prior to or following assertion of the
Claim for the Covered Liability and regardless of the actual time,
effort and Expenses involved in defense of the respective Claims.
(2) The Corporation waives all right and claims against each
Director and Officer for indemnification which may otherwise exist or arise
under common law principles for Liabilities and/or Expenses incurred by the
Corporation as a result of the negligence or alleged negligence of the Director
or Officer, except in instances where such Liabilities and/or Expenses are
incurred as a result of activities by the Director or Officer constituting a
Breach of Duty.
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(e) Binding Effect. An Indemnity Decision finding that
indemnification is required hereunder shall be binding upon the Corporation,
unless unsupported by any credible or resulting from a clearly erroneous
application of substantive law.
Section 5. Advancement of Expenses.
(a) Procedure. Upon written request by a Director or Officer who is
a non-Party witness or a Party to a Proceeding, the Corporation shall pay or
reimburse from time to time prior to completion of such Proceeding his or her
Expenses as incurred within 10 days after receipt of such request accompanied
by: (i) an executed written certificate affirming the Director's or Officer's
good faith belief that (s)he has not breached or failed to perform his or her
duties to the Corporation by engaging in conduct constituting a Breach of Duty;
(ii) an executed written undertaking by the Director or Officer to repay any
advances made under this Section if it is ultimately determined that the
Director or Officer is not entitled to be indemnified by the Corporation; and
(iii) written evidence of the Expenses incurred.
(b) Ability to Repay; Undertaking to be Unsecured. The undertaking
provided in this Section shall be accepted by the Corporation without reference
to the Directors' or Officers' ability to repay the allowance. The undertaking
shall be unsecured and the Director or Officer shall not be required to pay
interest on such amounts prior to a final determination that repayment is
required.
Section 6. Right of Director or Officer to Bring Suit. If an Indemnity
Decision is not issued within the time specified or such Indemnity Decision
finds that the Director or Officer is not entitled to indemnification or the
Corporation fails to make prompt payment pursuant to an Indemnity Decision, or a
request for an advancement of Expenses under Article XI, section 5 is refused,
the Director or Officer may at any time thereafter bring suit against the
Corporation to recover the unpaid Liability and/or Expense. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement or Expenses pursuant to the terms of an undertaking, the
Director or Officer shall be entitled to recover the expense of successfully
prosecuting or defending such suit. If the Director or Officer engaged in
conduct constituting a Breach of Duty, such fact: (i) shall be a defense to any
claim for indemnification against the Corporation (except for advancement of
Expenses prior to completion of a Proceeding); and (ii) shall entitle the
Corporation to recover all Expenses advanced prior to completion of the
Proceeding pursuant to the terms of the undertaking once such fact has been
established or admitted by the Director or Officer.
An Indemnity Decision finding that indemnification of the Director or
Officer is not required shall not be binding on the Director or Officer and
shall not create a presumption that the Director or Officer has engaged in
conduct constituting a Breach of Duty. In any suit brought by the Director or
Officer to enforce a right to indemnification or to an advancement of Expenses
hereunder or as otherwise provided in the Applicable Corporation Law, or by the
Corporation to recover an advancement of Expenses pursuant to the terms of an
undertaking, the burden of proving that the Director or Officer is not entitled
to be indemnified, or to such advancement of Expenses, under this Article or
otherwise shall be on the Corporation.
Section 7. Permissible Considerations. A Director or Officer, in the
discharge of his or her duties to the Corporation and in making any decision or
performing any other act in such capacity, is not limited to considering only
the economic interests of shareholders in determining what is best for the
Corporation, but may also consider the following: (a) the effects of the action
on employees, suppliers and customers of the Corporation; (b) effects on the
community in which the Corporation operates; and (c) any other factors the
Director or Officer considers pertinent.
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Section 8. Reliance by Directors or Officers. A Director or Officer
(absent actual knowledge to the contrary) may rely in the discharge of his or
her duties to the Corporation on information, opinions, reports or statements
(any of which may be written or oral, formal or informal, including financial
statements) and other financial data if prepared or presented by any of the
following: (a) an Officer or employee of the Corporation whom the Director or
Officer believes in good faith is reliable and competent as to the matters
presented or as to which the Director or Officer has no compelling reason to
believe is not reliable or competent; (b) legal counsel, public accountants or
other persons as to matters the Director or Officer believes in good faith are
within the person's professional or expert competence; and (c) information
presented to the Board of Directors by any person, officer, employee or
committee of the Board where it is believed in good faith the report merits
confidence or where the Director or Officer has no compelling reason to believe
it does not merit confidence.
Section 9. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a Director or Officer against any
Liability asserted against or incurred by the individual in any such capacity or
arising out of his status as such, regardless of whether the Corporation is
required or authorized to indemnify such person for Liability or Expenses under
this Article.
Section 10. Severability and Intent. If any provision of this Article
shall be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article contravene public policy,
this Article shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
which are invalid or inoperative or which contravene public policy shall be
deemed, without further action, by or on behalf of the Corporation, to be
modified, amended and/or limited, but only to the extent necessary to render the
same valid and enforceable; it being understood that it is the Corporation's
intention to provide the Directors and Officers with the broadest possible
protection against personal liability allowable under the Applicable Corporation
Law, and this Bylaw shall be liberally construed in order to fulfill this
intent, and in no event shall a Director's or Officer's reliance on any of the
provisions of this Article which may be held to be invalid, inoperative or in
contravention of public policy render such conduct a Breach of Duty.
Section 11. Notice to the Corporation. A Director or Officer shall
promptly notify the Corporation in writing when he or she has actual knowledge
of a Proceeding which may result in a claim of indemnification against
Liabilities or allowance of Expenses hereunder, but the failure to do so shall
not relieve the Corporation of any liability to the Director or Officer
hereunder unless the Corporation shall have been irreparably prejudiced by such
failure.
Section 12. Indemnification and Allowance of Expenses of Certain Others.
(a) Employee of Authorized Agent. The Board of Directors may, in its
sole and absolute discretion, by majority vote or consent, indemnify against
Liabilities incurred by, and/or provide for the advance of reasonable Expenses
of, an employee or authorized agent of the Corporation acting within the scope
of his or her duties as such, even if such employee or agent is not a Director
or Officer.
(b) Indemnity Agreements. The Board of Directors, by majority vote
or consent, may authorize the Corporation to enter written indemnity agreements
with: (i) any Director or Officer of the Corporation, which may further expand
the indemnification rights provided under these Bylaws or the Applicable
Corporation Law; and (ii) any employee or agent of the Corporation, which may
extend to such person the same, greater or lesser rights of indemnification and
reliance as those afforded to Directors and Officers under this Article.
Section 13. Amendment. This Article may only be altered, amended or
repealed by a vote of not less than two-thirds of the Corporation's outstanding
Class A common stock entitled to vote; provided,
15
however, that the Board of Directors may alter or amend this Article without
such stockholder approval if any such alteration or amendment is (a) made in
order to conform to any amendment or revision of the Applicable Corporation Law,
which (i) expands or permits the expansion of a Director's or Officer's right to
indemnification thereunder; (ii) limits or eliminates, or permits the limitation
or elimination of, the liability of a Director or Officer; or (iii) is otherwise
beneficial to the Directors and Officers or (b) an alteration or amendment which
is otherwise deemed by the Board of Directors to be an immaterial modification.
No amendment of this Article shall terminate, reduce or impair a Director's or
Officer's rights to indemnification for any act, occurrence or event taking
place prior to the effective date of such amendment and delivery of notice
thereof to such Director or Officer, regardless of when any Claim relating
thereto is actually asserted.
Section 14. Nonexclusivity of Article XI. The rights of a Director or
Officer (or any other person) granted under this Article shall not be deemed
exclusive of any other rights to indemnification against Liabilities or
allowance of Expenses which the Director or Officer (or such other person) may
be entitled to under any written agreement, Board of Directors resolution, vote
of shareholders of the Corporation or under the Applicable Corporation Law or
otherwise. Nothing contained in this Article shall be deemed to limit the
Corporation's obligations to indemnify against Liabilities or allow expenses to
a Director or Officer under the Applicable Corporation Law.
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