Exhibit 3.1
IN EFFECT May 22, 1998
BY-LAWS
OF
DEAN FOODS COMPANY
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ARTICLE I
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OFFICES
Section l. Registered Office. The registered office of the
corporation required by The General Corporation Law of the State of
AMENDED Delaware shall be established and maintained at the office of The
10/3/86 Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington,State of Delaware, and the address of the registered office
may be changed from time to time by the Board of Directors.
Section 2. Principal Office. The principal office of the
corporation shall be located at 3600 North River Road, Franklin Park,
Illinois. The corporation may have such other offices, either within
or without the State of Delaware, as the business of the corporation
may require from time to time.
ARTICLE II
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STOCKHOLDERS
Section l. Annual Meeting. The annual meeting of stockholders for
the election of directors and for the transaction of such other
AMENDED business as may be properly brought before the meeting shall be held
5/22/98 at such place, either within or without the State of Delaware, and at
such time and date as the Board of Directors, by resolution, shall
determine and as set forth in the notice of the meeting.
Section 2. Special Meeting. Special meetings of the stockholders
may be called by the Chairman of the Board or the President and shall
AMENDED be called by the Secretary at the written request (meeting the
5/31/85 requirements set forth in the Certificate of Incorporation) of either
a majority of the Board of Directors, or the holders of at least 80%
of the outstanding shares of Common Stock of the corporation. Such
special meetings may be held at such time and place, within or without
the State of Delaware, and for such purpose or purposes as shall be
stated in the notice of the meeting.
Section 3. Notice of Meetings. Except as otherwise provided by
statute, written or printed notice stating the place, day and hour of
the meeting and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be delivered not less than ten
days nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the Secretary, to
each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in
the United States mail in a sealed envelope addressed to the
stockholder at his last known post office address as it appears on the
stock record books of the corporation, with postage thereon prepaid.
When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days or a new record date is fixed
for the adjourned meeting.
Section 4. Record Dates. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders at 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, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before
the date of such meeting, or more than sixty days prior to any other
action. If no record date is fixed:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the
close of business on the day next preceding the day on which
notice is given,
(b) The record date for determining stockholders for any
other purpose shall be the close of business on the day on which
the Board of Directors adopts the resolution or resolutions
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. In no event shall the stock
transfer books of the corporation be closed.
Section 5. List of Voting Stockholders. 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 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, during ordinary business hours, for a period of at least ten
days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting
is to be held, and the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
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Section 6. Quorum. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat
present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or
represented by proxy any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 7. Voting. Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation, of the
resolution or resolutions of the Board of Directors setting forth the
voting powers, if any, of the holders of any series of Preferred
Stock, or of these By-Laws shall be entitled to one vote, in person or
by proxy, for each share of stock entitled to vote held by such
stockholder, but no proxy shall be voted after three years from its
date unless such proxy provides for a longer period. All elections or
directors shall be decided by plurality vote; all other questions
shall be decided by majority vote except as otherwise provided by the
Certificate of Incorporation, by the resolution or resolutions of the
Board of Directors setting forth the voting rights, if any, of the
holders of any series of Preferred Stock, or by the laws of the State
of Delaware.
Section 8. Voting of Shares by Certain Holders.
(a) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officers, agent or
proxy as the By-Laws of such corporation may prescribe, or, in
the absence of such provision, as the Board of Directors of such
corporation may determine.
(b) Shares standing in the name of a deceased person may be
voted by his administrator or his executor either in person or by
proxy, but no guardian, conservator or trustee shall be entitled,
as such fiduciary, to vote shares held by him without a transfer
of such shares into his name.
(c) Shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into his name, if authority so to do be contained in an
appropriate order of the court by which such receiver was
appointed, and a certified copy of such order is filed with the
Secretary of the corporation before or at the time of the
meeting.
(d) A stockholder whose shares are pledged shall be entitled
to vote such shares unless in the transfer by the pledgor on the
books of the corporation he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee or his proxy may
represent such stock and vote thereon.
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(e) If shares or other securities having voting power stand
in names of two or more persons, or if two or more persons have
the same fiduciary relationship respecting the same shares,
unless the Secretary of the corporation is given written notice
to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the
following effect:
(l) The act of the majority voting binds all;
(2) In all other cases, the effect provided by the laws
of the State of Delaware.
(f) Shares of the corporation belonging to it shall not be
voted, directly or indirectly, at any meeting, and shall not be
counted in determining the total number of outstanding shares at
any given time, but shares of the corporation held by it in a
fiduciary capacity may be voted and shall be counted in
determining the number of outstanding shares at any given time.
Section 9. Proxies. At all meetings of stockholders, a
stockholder may vote in person or by written proxy filed with the
Secretary of the corporation before or at the time of the meeting. To
revoke his proxy as to any matter before the meeting, a stockholder
must deliver written notice to that effect to the Secretary before
that matter is submitted to a vote of the stockholders.
ARTICLE III
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BOARD OF DIRECTORS
Section l. General Powers and Duties. The property, business and
affairs of the corporation shall be managed by its Board of Directors.
Section 2. Number and Qualification. The Board of Directors shall
be divided into three classes. Class One shall consist of four
directors whose term of office shall expire at the Annual Meeting of
AMENDED Stockholders to be held in l996, Class Two shall consist of four
01/26/96 directors whose term of office shall expire at the Annual Meeting of
Stockholders to be held in l997 and Class Three shall consist of four
directors whose term of office shall expire at the Annual Meeting of
Stockholders to be held in l998. At each Annual Meeting after the l995
Annual Meeting of Stockholders, successors to the class of directors
whose term then expires shall be elected for a three-year term.
Section 3. Resignations. Any director, member of a committee or
other officer may resign at any time. Such resignation shall be made
in writing and shall take effect at the time specified therein or, if
no time be specified, at the time of its receipt by the President or
Secretary of the corporation. The acceptance of a resignation shall
not be necessary to make it effective.
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Section 4. Vacancies. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in
office, though less than a quorum, by majority vote may appoint any
qualified person to fill such vacancy, which person shall hold office
the unexpired term and until his successor shall be duly chosen.
Section 5. Increase or Decrease of Number. The number of
directors may be increased or decreased by amendment of these By-Laws
by the affirmative vote of a majority of the directors, though less
AMENDED than a quorum, and by like vote the additional directors may be
1/26/96 chosen to hold office until the next annual election and until their
successors are elected and qualified.
Section 6. Regular Meetings. The regular annual meeting of the
Board of Directors shall be held without other notice than this By-Law
as promptly as possible after the annual meeting of stockholders in
each year. The place of such meeting shall be the same as that of the
annual meeting of stockholders immediately preceding. The Board of
Directors may provide, by resolution, the time and place, either
within or without the State of Delaware, for the holding of additional
regular meetings without notice other than such resolution.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be held at any time on the call of the Chairman of the
Board or of the President and shall be called by the Chairman of the
AMENDED Board or the President at the request in writing of any five (5)
5/13/85 directors. Special meetings of the Board of Directors may be held at
such place, either within or without the State of Delaware, as shall
be specified or fixed in the call for such meeting or notice thereof.
Section 8. Notice of Special Meetings. Notice of each special
meeting shall be mailed by or at the direction of the Secretary to
each director addressed to him at his residence or usual place of
business at least three days before the day on which the meeting is to
be held, or shall be sent to him by telegram, or be delivered
personally, at least two days before the day on which the meeting is
to be held. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail in a sealed envelope so
addressed, with postage thereon prepaid. If notice be given by
telegraph, such notice shall be deemed to be delivered when the same
is delivered to the telegraph company. Notice may be waived in writing
by any director, either before or after the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 9. Quorum. A majority of the total number of directors as
at the time specified by the By-Laws shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors. In
the absence of a quorum, a majority of the directors present may
adjourn the meeting from time to time until a quorum be had, and
without other notice than by announcement at the meeting at which the
adjournment has been taken.
Section l0. Manner of Acting. Except as otherwise provided by
statute, by the Certificate of Incorporation, as amended, or these By-
Laws, the act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
5
Section 11. Compensation. Directors shall receive such annual fee
or meeting fee for their services as shall be established by
resolution of the Board of Directors plus expenses of attendance at
Board and Committee meetings, if any. The Board may also authorize the
payment of a fee for the attendance of any director at meetings of
Committees of the Board. Nothing herein contained shall be construed
to preclude any director from serving the corporation in any other
capacity and receiving his regular compensation therefor.
Section l2. Executive Committee. An Executive Committee
AMENDED consisting of four members of the Board of Directors may be elected by
10/2/87 the Board of Directors. A chairman of said committee shall be elected
by the Board of Directors from among the members of the Executive
Committee. Each director serving on the Executive Committee shall hold
office until the Annual Meeting held next after his election and until
his successor shall have been elected or qualified. If an Executive
Committee is elected, it shall, during the intervals between the
meetings of the Board of Directors, and so far as it lawfully may,
possess and exercise all of the authority of the Board of Directors in
the management of the business of the corporation, in all cases in
which specific directions shall not have been given by the Board of
AMENDED Directors, provided that notwithstanding the foregoing, the Executive
10/30/69 Committee shall not have authority:
(l) To take any action to amend the Certificate of
Incorporation;
(2) To adopt a plan of merger or plan of consolidation with
another corporation or corporations;
(3) To recommend to the stockholders the sale, lease, exchange,
mortgage, pledge or other disposition of all or
substantially all of the property and assets of the
corporation if not made in the usual and regular course of
its business;
(4) To recommend to the stockholders a voluntary dissolution of
the corporation or a revocation thereof;
(5) To amend, alter or repeal the By-Laws of the corporation;
(6) To elect or remove officers of the corporation or members of
the Executive Committee;
(7) To fix the compensation of any member of the Executive
Committee;
(8) To declare dividends;
(9) To amend, alter or repeal any resolution of the Board of
Directors which by its terms provides that it shall not be
amended, altered or repealed by the Executive Committee.
The Executive Committee shall keep minutes of the proceeding of their
meetings which shall be submitted to the Board of Directors at the
next meeting of the Board if the Board shall so request. Three members
of the Committee shall constitute a quorum for the transaction of
business, provided that if any member or members thereof are absent
from a meeting or disqualified from membership on the Committee, the
remaining member or members thereof present at any meeting and not
disqualified from
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voting (whether or not he or they would otherwise constitute a quorum)
may unanimously appoint another member of the Board of Directors to
act at the meeting in place of any such absent or disqualified member.
Meetings of the Executive Committee shall be called upon the request
of any member of the Executive Committee and notice of such meetings
shall in each instance be given to each member of the Committee at
least twenty-four hours before the meeting either orally or in
writing. A fixed sum and expenses of attendance, if any, may be
allowed and paid for attendance at each meeting of the Executive
Committee, the amount of such sum to be designated by the Board of
Directors.
Section l3. Presumption of Assent. A director of the corporation
who is present at a meeting of the Board of Directors at which action
on any corporate matter is taken shall be conclusively presumed to
have assented to the action taken unless his dissent shall be entered
in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the
meeting before the adjournment of the meeting. Such right to dissent
shall be sent by registered mail to the Secretary of the corporation
immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such
action.
Section l4. Informal Action. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if prior to such action a
written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board or committee.
Section l5. Presence at Meetings. Members of the Board of
Directors or any committee thereof may participate in a meeting of
such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation shall
constitute presence at such meeting.
Section l6. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors
of the corporation, which, to the extent provided in the resolution,
shall have and may exercise all the powers and authority of
ADDED the Board of Directors with respect to the management of the business
10/2/87 affairs of the corporation and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority of the Board in
reference to amending the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors, fix the designations and any of the
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any
other class or classes of stock of the corporation or fix the number
of shares of any series of stock or authorize the increase or decrease
of the shares of any series), 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 these By-
Laws; and, unless the resolution, these By-Laws or the Certificate of
Incorporation expressly so provides, no such committee
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shall have the power or authority to declare a dividend, to authorize
the issuance of stock or to adopt a Certificate of Ownership and
Merger. 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 and 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. Additionally, in
the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and
not disqualified from voting, whether or not 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. Each committee
shall keep regular minutes of its meetings and report the same to the
Board of Directors when required."
ARTICLE IV
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COMPANY OFFICERS
Section l. Number. The officers of the corporation shall be a
AMENDED Chairman of the Board, a President, one or more Vice Presidents, a
01/26/96 Secretary and a Treasurer, all of whom shall be elected by the Board
of Directors; and in addition, during such periods as an Executive
Committee shall be appointed, the Board of Directors shall select one
of the members thereof to fill the office of Chairman of the Executive
Committee. The Board of Directors may elect or appoint one or more
Assistant Secretaries, one or more Assistant Treasurers, and such
other subordinate officers and agents as the Board may determine, to
hold office for such period and with such authority and to perform
such duties as may be prescribed by these By-Laws or as the Board may
from time to time determine. Any two or more offices (including
without limitation President, Chairman of the Board and Chairman
AMENDED of the Executive Committee) may be held by the same person, except
10/1/87 the offices of President and Vice President, and the offices of
President and Secretary.
Section 2. Election, Term of Office and Qualifications. The
officers of the corporation shall be elected annually by the Board of
Directors at the first meeting of the Board held after the annual
meeting of stockholders. If the election of officers shall not be held
at such meeting, such election shall be held as soon thereafter as the
same can conveniently be held. Each officer shall hold his office
until his successor shall have been duly elected and shall have
qualified or until his death, resignation or removal. The Chairman of
the Board and the Chairman of the Executive Committee (if any) shall
be members of the Board, but none of the other officers need be a
member of the Board. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 3. Removal. Any of the officers or agents appointed by
the Board of Directors may be removed by the Board of Directors,
whenever in its judgement the best interest of the corporation will be
served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by
the Board of Directors for the unexpired portion of the term.
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Section 5. Bonds. If the Board of Directors by resolution shall
so require, any officer or agent of the corporation shall give bond to
the corporation in such amount and with such surety as the Board of
Directors may deem sufficient, conditioned upon the faithful
performance of the respective duties and offices.
Section 6. Chairman of the Board; Chief Executive Officer.
AMENDED The Chairman of the Board (and in his absence, disability, or at his
12/2/88 discretion, the President) shall be the chief executive officer of the
corporation. The Chairman of the Board shall preside at all meetings
of stockholders and of the Board of Directors; and shall be the
superior officer to all other officers of the corporation. Subject to
the direction and authority of the Board of Directors, the Chairman of
the Board shall be responsible for the implementation and direction of
corporate policy, shall have authority over all officers of the
corporation in the execution of the corporate policies as reflected in
the orders and resolutions of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of
Directors from time to time.
Section 7. President. Subject to the general control of the Board
of Directors and the Chairman of the Board, the President shall be
AMENDED the chief operating officer of the corporation and as such shall have
12/2/88 the active management of, and exercise detailed supervision over, the
business and affairs of the corporation and over its several officers.
In the absence or disability or at the direction of the Chairman of
the Board, the President shall preside at all meetings of the
stockholders and at meetings of the Board of Directors. Subject to
such general control, the President shall perform all duties usually
incident to the office of President and such other duties as may be
prescribed by the Chairman of the Board or the Board of Directors from
time to time.
AMENDED Section 8. The Vice Presidents. In the absence or disability of
1/26/96 the President, the Vice Presidents shall perform the duties of the
President, and the Vice Presidents shall perform such other duties as
from time to time may be assigned to them by the Chairman of the
Board, the President or the Board of Directors. The Board of Directors
from time to time may determine the number and relative seniority of
the Vice Presidents.
Section 9. Treasurer. The Treasurer shall have charge and custody
of, and be responsible for, all funds and securities of the
corporation; receive and give receipts for monies due and payable to
the corporation from any source whatsoever; deposit or cause to be
deposited all monies in the name and to the credit of the corporation
in such banks, trust companies or other depositaries as may be
designated or selected by the Board of Directors; keep or cause to be
kept full and accurate records and accounts of receipts and
disbursements in books of the corporation and see that said books are
kept in proper form and that they correctly show the financial
transactions of the corporation; disburse or supervise the
disbursement of the funds of the corporation as may be directed by the
Board of Directors or by his superior officers, and take or cause to
be taken proper vouchers for such disbursements; furnish to the Board
of Directors, to any Executive Committee thereof, to the President,
and to such other officers as the Board may designate, at such times
as may be required, an account of all his transactions as Treasurer;
be responsible under the direction of his superior officers, the Board
of Directors, and any Executive Committee thereof, for activities
relating to the obtaining and disbursement of capital; and in general,
perform all of the duties incident to the office of Treasurer and such
other duties as from time to time may be
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assigned to him by his superior officers, the Board of Directors, and
any Executive Committee thereof. The books and papers of the Treasurer
shall at all times be open to the inspection of the President and each
member of the Board of Directors.
Section l0. Secretary. The Secretary shall attend all meetings of
the stockholders and of the Board of Directors and keep the minutes of
such meetings in one or more books provided for that purpose; see that
all notices are duly given in accordance with the provisions of these
By-Laws, or as required by law; be custodian of the corporate records
and of the seal of the corporation and see that the seal of the
corporation or a facsimile thereof is affixed to or impressed on all
certificates for shares prior to the issue thereof, and all documents,
the execution of which on behalf of the corporation under its seal is
duly authorized; sign with the Chairman of the Board, the President,
or a Vice President certificates for shares of the corporation, the
issue of which shall have been authorized by resolution of the Board
of Directors; have general charge of the stock transfer books of the
corporation and keep or cause to be kept the stock record and transfer
books in such manner as to show at any time the total number of shares
issued and outstanding, the names and addresses of the holders of
record thereof as furnished to him by such record holders, the number
of shares held by each and the time when each became such holder of
record; see that the reports, statements, certificates and all other
documents and records required by law are properly made, kept and
filed; and in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him by his superior officers, the Board of Directors, and any
Executive Committee thereof.
Section 11. Assistant Treasurers. At the request of the
Treasurer, or in his absence or disability, the Assistant Treasurers
shall perform all duties of the Treasurer, and when so acting shall
have all the powers of, and be subject to all the restrictions upon,
the Treasurer. Any such Assistant Treasurer shall perform such other
duties as from time to time may be assigned to him by his superior
officers, the Board of Directors, and any Executive Committee thereof.
Section l2. Assistant Secretaries. At the request of the
Secretary, or in his absence or disability, the Assistant Secretaries
shall perform the duties of the Secretary, including without
limitation the signing, with the Chairman of the Board, the President
or a Vice President, of certificates for shares of the corporation,
and when so acting shall have all the powers of, and be subject to all
the restrictions imposed upon, the Secretary. Any such Assistant
Secretary shall perform such other duties as from time to time may be
assigned to him by his superior officers, the Board of Directors, and
any Executive Committee thereof.
Section l3. Compensation. The compensation of the officers shall
be fixed from time to time by the Board of Directors; provided that no
officer shall be prevented from receiving such compensation by reason
of the fact that he is also a director of the corporation.
Section l4. Delegation of Duties. In case of the absence of
disability to act of any officer of the corporation and of any person
authorized to act in his place, the Board of Directors may, for the
time being, delegate the powers and duties, or any of them, to any
other office or any director or other person whom it may select, and
AMENDED the President (or in his absence, the Chairman of the Board) shall
10/1/87 have the
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power to delegate such powers and duties subject to such action as the
Board of Directors or any Executive Committee thereof, may take with
respect to the same matter.
ARTICLE V
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DIVISIONS AND DIVISIONAL OFFICERS
Section l. Establishment of Divisions. The Board of Directors may
cause the business and operations of this corporation to be divided
into one or more divisions, based upon product manufactured,
geographical territory, character and type of operations, operating
units or upon such other basis as the Board of Directors may from time
to time determine to be advisable. Such divisions may operate under
division or tradenames approved for such purpose by the Board of
Directors and in such other manner as may be authorized by the Board.
Section 2. Divisional Officers. The Board of Directors of the
corporation may appoint such officers of the division with such titles
(such as President, Vice President, Secretary, Treasurer, Assistant
Secretaries and Assistant Treasurers of such division) as may from
time to time be deemed appropriate. Divisional officers shall have
such authority with respect to the affairs of their respective
divisions as officers with like titles generally have with respect to
the affairs of any independent corporation or as may from time to time
be assigned by the Chairman of the Board.
With respect to the affairs of each division and in the regular
course of its business, the officers of such division may sign
contracts and other documents in the name of the division; provided,
however, that in no case shall the officer of any one division have
authority to bind another division of the corporation or to bind the
corporation except as to the business and affairs of the division of
which he is an officer.
ARTICLE VI
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SHARES, CERTIFICATES FOR SHARES
AND TRANSFER OF SHARES
Section l. Regulation. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the issuance,
transfer and registration of certificates for shares of the
corporation, including the appointment of transfer agents and
registrars.
Section 2. Certificates for Shares. Certificates representing
shares of the corporation shall be respectively numbered serially for
each class of shares, or series thereof, as they are issued, shall be
impressed with the corporate seal or a facsimile thereof, and shall be
signed by the Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary; provided that such signatures may
be facsimile on any certificate countersigned by an independent
transfer agent or its employee, or by an independent registrar or its
employee. Each certificate shall exhibit the name of the corporation,
state that the corporation is organized or incorporated under the laws
of the State of Delaware, the name of the person to whom issued, the
date of issue, the class (or series of any class) and number of shares
represented thereby and the par value of the shares represented
thereby or that such shares are without par value. If the corporation
be authorized to issue stock
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of more than one class or of more than one series of any class, the
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof, and the
qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of
the certificates which the corporation shall issue to represent such
class or series of stock; provided that, except as otherwise provided
by law, in lieu of the foregoing requirement, there may set forth on
the face or back of the certificates a statement that the corporation
will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights. Each certificate shall be otherwise in such form as may be
prescribed by the Board of Directors and as shall conform to the rules
of any Stock Exchange on which the shares may be listed.
Section 3. Cancellation of Certificates. All certificates
surrendered to the corporation for transfer shall be cancelled and no
new certificates shall be issued in lieu thereof until the former
certificate for a like number of shares shall have been surrendered
and cancelled, except as herein provided with respect to lost, stolen
or destroyed certificates.
Section 4. Lost, Stolen or Destroyed Certificates. Any
stockholder claiming that his certificate for shares is lost, stolen,
or destroyed may make an affidavit or affirmation of that fact and
lodge the same with the Secretary of the corporation, accompanied by a
signed application for a new certificate. Thereupon, and upon the
giving of a satisfactory bond of indemnity to the corporation not
exceeding in amount double the value of the shares represented by such
certificate, such value to be determined by the President and
Treasurer of the corporation, a new certificate may be issued of the
same tenor and representing the same number, class and series of
shares as were represented by the certificate alleged to be lost,
stolen or destroyed.
Section 5. Transfer of Shares. Shares of the corporation shall be
subject to transfer on the books of the corporation by the holder
thereof in person or by his duly authorized attorney, upon the
surrender and cancellation of a certificate or certificates for a like
number of shares. Upon presentation and surrender of a certificate for
shares properly endorsed and payment of all taxes therefore, the
transferee shall be entitled to a new certificate or certificates in
lieu thereof. As against the corporation, a transfer of shares can be
made only on the books of the corporation and in the manner
hereinabove provided, and the corporation shall be entitled to treat
the holder of record of any share as the owner thereof and shall not
be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by
the statutes of the State of Delaware.
ARTICLE VII
-----------
DIVIDENDS AND RESERVES
Section l. Dividends. Dividends upon the outstanding shares of
the corporation (other than liquidating dividends) may be declared
from its surplus or, in case there be no such surplus, out of its net
profits for the fiscal year in which the dividend is declared and/or
the preceding year. However, if the capital of the corporation shall
have
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been diminished in any way to an amount less than the aggregate amount
of the capital represented by the issued and outstanding stock of all
classes having a preference upon the distribution of assets, no
dividend shall be declared and paid out of such net profits until the
deficiency in the amount of capital represented by the issued and
outstanding stock of all classes having a preference upon the
distribution of assets shall have been repaired. Subject to the
provisions of the Certificate of Incorporation, as amended from time
to time and to any other lawful commitments of the corporation, and
subject to the provisions of statute, dividends may be declared and
made payable at such times and in such amounts as the Board of
Directors may from time to time determine. Dividends may be declared
at any regular or special meeting of the Board and may be paid in cash
or other property or in the form of a stock dividend.
Section 2. Reserves. Before declaring any dividend or making any
distribution of net profits, the Board of Directors, from time to
time, may set apart out of any funds of the corporation available for
dividends, a reserve or reserves for working capital, or to meet
contingencies, or for any other lawful purpose, and also, from time to
time, may abolish or decrease any such reserve or reserves.
ARTICLE VIII
------------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section l. Contracts. Any contract or instrument authorized by
the Board of Directors or duly appointed Executive Committee may be
executed by the Chairman of the Board, the President or any Vice
President and attested by the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. In addition, the Board of
Directors may authorize any other officer or officers, agent or
agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its
name, unless authorized by resolution of the Executive Committee or
the Board of Directors. Such authority may be general or confined to
specific instances.
Section 3. Checks, Drafts, Notes, etc. All checks, drafts or
other orders for the payment of money and all notes or other evidences
of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents, of the corporation and
in such manner as shall from time to time be determined by resolution
of the Board of Directors.
Section 4. Depositaries. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit
of the corporation in such banks, trust companies or other
depositaries as the Board of Directors may designate.
ARTICLE IX
----------
CORPORATE SEAL
The corporate seal shall be circular in form and shall have
inscribed thereon the name of the corporation and the words "Corporate
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Seal Delaware". Said seal may be used by causing it, or a facsimile or
equivalent thereof, to be impressed or affixed or reproduced.
ARTICLE X
---------
FISCAL YEAR
AMENDED The fiscal year of the corporation shall be a 52-53 week fiscal
5/23/86 year which ends on the last Sunday of May.
ARTICLE XI
----------
STOCK IN OTHER CORPORATIONS
Any shares of stock in any other corporation which may from time
to time be held by this corporation may be represented and voted at
any meeting (or consent in lieu thereof) of shareholders of such
corporation by the Chairman of the Board, the President, a Vice
President or the Secretary of this corporation, or by any other person
or persons thereunto authorized by the Board of Directors, or by any
proxy designated by written instrument of appointment executed in the
name of this corporation by its Chairman of the Board, President, or a
Vice President and attested by the Secretary, any Assistant Secretary,
the Treasurer or any Assistant Treasurer.
ARTICLE XII
-----------
GENERAL WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions
of these By-Laws, or under the provisions of the Certificate of
Incorporation, as amended, or under the provisions of the General
Corporation Law of the State of Delaware, waiver thereof in writing,
signed by the person or persons entitled to such notice, either before
or after the time stated therein, shall be deemed equivalent to the
giving of such notice. The presence of a stockholder in person or by
proxy at any meeting of stockholders, and the presence of a director,
in person, at any meeting of the Board of Directors, shall be deemed
to be the equivalent of such waiver, unless such presence is for the
sole purpose of objecting to the lack of sufficient notice.
ARTICLE XIII
------------
INDEMNIFICATION
Section l. Each person who was or is a party or is threatened to
be made a party to or is involved, including involvement as a witness,
in any 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 (i) is or was
or has agreed to become a director or officer of the corporation or
(ii) is or was serving or has agreed to serve (at or during such time
AMENDED as such individual is or was a director or officer of the corporation)
10/2/87 as an employee, agent or fiduciary of the corporation or, at the
request of the corporation, as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise or entity, including service with respect to an
employee
14
benefit plan, or by reason of any action alleged to have been taken or
omitted by such person in any such capacity, shall be indemnified and
held harmless by the corporation to the fullest extent permitted by
Delaware 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
said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties under the
Employee Retirement Income Security Act of 1974, amounts paid or to be
paid in settlement and amounts expended in seeking indemnification
granted to such person under applicable law, this Article, the
corporation's Certificate of Incorporation or any agreement with the
corporation) actually and reasonably incurred or suffered by such
person in connection with such action, suit or proceeding and any
appeal thereof, and such indemnification shall continue as to any such
person who has ceased to be a director or officer of the corporation
and shall inure to the benefit of any such person's heirs, executors
and administrators, if in each case such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action, suit or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding or any appeal thereof by judgment, order, settlement,
conviction, or plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that such 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, had reasonable cause to believe his
conduct was unlawful.
Section 2. Each person who was or is a party or is threatened to
be made a party to or is involved, including involvement as a witness,
in any action, suit or proceeding by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact
that he (i) is or was or has agreed to become a director or officer of
the corporation or (ii) is or was serving or has agreed to serve (at
or during such time as such individual is or was a director or officer
of the corporation) as an employee, agent or fiduciary of the
corporation or, at the request of the corporation, as a director,
officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise or entity,
including service with respect to an employee benefit plan, or by
reason of any action alleged to have been taken or omitted by such
person in any such capacity, shall be indemnified and held harmless by
the corporation to the fullest extent permitted by Delaware 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 said law
permitted the corporation to provide prior to such amendment) against
all expense (including attorneys' fees and amounts expended in seeking
indemnification granted to such person under applicable law, this
Article, the corporation's Certificate of Incorporation or any
agreement with the corporation) actually and reasonably incurred or
suffered by such person in connection with such action, suit or
proceeding and any appeal thereof, and such indemnification shall
continue as to any such person who has ceased to be a director or
officer of the corporation and shall inure to the benefit of any such
person's heirs, executors and administrators, if in each case such
person acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation and
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
15
the corporation unless and only to the extent that the Court of
Chancery of Delaware 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 indemnification
for such expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
Section 3. To the extent that any person referred to in Section l
or 2 of this Article has been successful on the merits or otherwise,
including the dismissal of an action without prejudice, in defense of
any action, suit or proceeding and any appeal thereof referred to
therein or in defense of any claim, issue or matter therein, he shall
be indemnified against all expense (including attorneys' fees and
amounts expended in seeking indemnification granted to such person
under applicable law, this Article, the corporation's Certificate of
Incorporation or any agreement with the corporation) actually and
reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Section l or 2 of this
Article (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of any person referred to in Section l or 2 is proper
in the circumstances because he has met the applicable standard of
conduct set forth therein. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum (as defined in these
By-Laws) consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion.
Section 5. Expenses incurred by any person referred to in Section
l or 2 of this Article in defending a civil or criminal action, suit
or proceeding and any appeal thereof shall be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
and any appeal thereof upon receipt by the corporation of an
undertaking by or on behalf of such person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
Section 6. If a claim for indemnification (including an
advancement of expenses) under Section l or 2 is not paid in full by
the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter
bring suit in any court of competent jurisdiction against the
corporation to recover the unpaid amount of the claim and, if the
claimant is successful in establishing his right to indemnification
(or advancement of expenses), in whole or in part, in any such action
(or settlement thereof), he shall be entitled to be paid by the
corporation the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for an advancement of expenses where the required undertaking,
if any, has been tendered to the corporation) that the indemnitee has
not met the applicable standard of conduct described in Section l or
2.
Section 7. Any person serving as a director or officer of another
corporation, partnership, joint venture or other enterprise, a
majority of whose equity interests are owned by the corporation (a
"subsidiary"), directly or through one or more other subsidiaries,
shall be conclusively presumed to be serving in such capacity at the
request of the corporation.
16
Section 8. Persons who after the date of the adoption of this
provision become or remain directors or officers of the corporation or
who, while a director or officer of the corporation, become or remain
a director, officer, employee, agent or fiduciary of another entity at
the request of the corporation, shall be conclusively presumed to have
relied on the rights to indemnification (including advancement of
expenses) contained in this Article XIII in entering or continuing
such service. The rights contained in this Article shall apply to
claims made against a person arising out of acts or omissions which
occurred prior to the adoption hereof as well as those which occur
after such adoption.
Section 9. The rights conferred on any person in Sections l and 2
shall not be exclusive of any other right which such person may have
or hereafter acquire under any law, provision of the Company's
Certificate of Incorporation or these By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section l0. All rights to indemnification and advancement of
expenses provided by this Article shall be deemed to be a contract
between the corporation and each person referred to in Section l or 2
at any time while this Article is in effect. Any repeal or
modification of this Article, or any repeal or modification of the
relevant provisions of the Delaware General Corporation Law or any
other applicable law, shall not in any way diminish any rights to
indemnification or advancement of expenses to such person or the
obligations of the corporation.
Section 11. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee, agent
or fiduciary of the corporation or, if at the request of the
corporation, of any other corporation, partnership, joint venture,
trust or other enterprise or entity, including employee benefit plans,
against any expense, liability or loss, whether or not the corporation
would have power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section l2. The Board of Directors is authorized to enter into a
contract with any director, officer, employee, agent or fiduciary of
the corporation, or any person serving at the request of the
corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise or entity, including employee benefit plans, providing for
indemnification rights equivalent to or, if the Board of Directors so
determines, greater than those provided for in this Article XIII.
Section l3. The Board of Directors may, by resolution, extend the
provisions of this Article pertaining to indemnification and
advancement of expenses to 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 by reason of the fact that he is or was or
has agreed to become an employee, agent or fiduciary of the
corporation, or is or was serving or has agreed to serve at the
request of the corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise (notwithstanding that such individual may not be or
have been or have ever agreed to become a director or officer of the
corporation).
Section l4. The invalidity or unenforceability of any provision
of this Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
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ARTICLE XIV
-----------
AMENDMENTS
These By-Laws may be altered, amended or repealed and new or other By-
Laws may be made and adopted by the vote of a majority of the total
number of directors as at the time specified by the By-Laws, at any
AMENDED regular or special meeting of the Board of Directors, and without
10/2/87 prior notice of intent so to do.
18