1
EXHIBIT 3
AMENDED AND RESTATED
BYLAWS
OF
SUIZA FOODS CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
shall be established and maintained at 1013 Centre Road, Wilmington, Delaware
19804-1297.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine or as the business of the corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held on such day in each fiscal year of the corporation and at such time and
place as may be fixed by the Board of Directors, at which meeting the
stockholders shall (i) elect directors to fill the class of directors whose
terms are expiring at such meeting, and (ii) transact such other business as may
properly be brought before the meeting.
Section 3. Notice of Annual Meeting. Written or printed notice of the
annual meeting, stating the place, day and hour thereof, shall be given to each
stockholder entitled to vote thereat at such address as appears on the books of
the corporation, not less than ten days nor more than sixty days before the date
of the meeting. Any stockholder of the corporation entitled to vote at an annual
meeting may seek to transact other corporate business at the annual meeting,
provided that such business is set forth in a written notice and mailed by
certified mail, to the secretary of the corporation and received no later than
March 1 of any calendar year; provided, however, that if less than 35 days'
notice of an annual meeting of stockholders is given, such notice to transact
corporate business shall have been made or delivered to the secretary of the
corporation not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Notwithstanding the
foregoing, such notice shall also comply with any applicable federal securities
laws.
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Section 4. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or the
certificate of incorporation, may be called only by the Chief Executive Officer,
and shall be called by the Chief Executive Officer or the Secretary at the
request in writing of a majority of the Board of Directors.
Section 5. Notice of Special Meetings. Written or printed notice of a
special meeting of stockholders, stating the place, day and hour and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat at
such address as appears on the books of the corporation, not less than ten days
nor more than sixty days before the date of the meeting.
Section 6. Business at Special Meetings. Business transacted at all
special meetings of stockholders shall be confined to the purposes stated in the
notice thereof.
Section 7. Stockholder List. At least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of voting shares held by each, shall be prepared by
the Secretary. 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. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
during the meeting.
Section 8. Quorum. The holders of a majority of the votes attributed to
the shares of capital stock issued and outstanding and entitled to vote thereat
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, the certificate
of incorporation or these bylaws. A holder of a share shall be treated as being
present at a stockholders' meeting if the holder of such share is present in
person at the meeting or represented at the meeting by a valid proxy, regardless
of whether (i) the instrument granting such proxy is marked as casting a vote or
abstaining, or is left blank, or (ii) the holder's shares are voted by a broker
with no power to vote such shares with respect to some or all matters to be
voted upon at the meeting. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a meeting is adjourned for less than
thirty days in any one adjournment and a new record date is not fixed for the
adjourned meeting, it shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is adjourned are announced at
the meeting at which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted on the original date
of the meeting. When a meeting is adjourned for thirty days or more, or when
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given as in the case of an original
meeting.
Section 9. Required Vote. When a quorum is present at any meeting, the
vote of the holders of a majority of the shares having voting power represented
in person or by proxy shall decide any question brought before such meeting
other than elections of directors or any other matter upon which a different
vote is required by the express provision of any statute, the certificate of
incorporation of the corporation or these bylaws, in which event such express
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provision shall govern and control the decision of such question. Directors
shall be elected by a plurality of the votes cast in the election. Shares voted
on a matter or matters by a broker with no power to vote such shares with
respect to that matter or matters will be deemed to be shares not having voting
power with respect to that matter or matters only.
Section 10. Proxies. (a) Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to subsection (a) of
this Section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his authorized officer, director,
employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to
act for him as proxy by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or other means
of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the
stockholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors or, if there
are no inspectors, such other persons making that determination shall
specify the information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
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Section 11. Voting. Unless otherwise provided by statute or the
certificate of incorporation, each stockholder shall have one vote for each
share of stock having voting power, registered in his name on the books of the
corporation.
Section 12. Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any annual or special meeting of stockholders, or any
action which may be taken at any annual or special meeting of stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
such consent or consents are delivered to the corporation. Every written consent
shall bear the date of signatures of each stockholder and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent, written consents signed by a
sufficient number of holders to take action are delivered to the corporation.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 13. Inspectors. (a) The corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the chairman
of the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Delaware Court of Chancery, upon application by
a stockholders, shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Article II, Section 6(b)(ii), ballots and the regular books and records of the
corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf
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of banks, brokers, their nominees or similar persons that represent more votes
than the holder of a proxy is authorized by the record owner to cast, or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein, the inspectors at
the time they make their certification pursuant to subsection (b)(v) of this
Section shall specify the precise information considered by them including the
person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for
the inspector's belief that such information is accurate and reliable.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall be
managed by a Board of Directors. The Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute, by the
certificate of incorporation or these bylaws directed or required to be
exercised or done by the stockholders.
Section 2. Number of Directors.
(a) The Board of Directors shall be divided into three classes,
designated Classes I, II and III, which shall be as nearly equal in number as
possible. The initial Directors of Class I shall be elected to hold office for a
term expiring at the next succeeding annual meeting, the initial Directors of
Class II shall be elected to hold office for a term expiring at the second
succeeding annual meeting, and the initial Directors of Class III shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. At each annual meeting of stockholders following such initial
classification and election, the respective successors of each class shall be
elected for three year terms.
(b) The number of directors shall be fixed from time to time by
resolution of the Board of Directors. In case of any increase in the number of
directors in advance of an annual meeting of stockholders, each additional
director shall be elected by the directors then in office, although less than a
quorum, to hold office until the next election of the class for which such
director shall have been chosen (as provided in the last sentence of this
subsection(b)), or until his successor shall have been duly chosen. No decrease
in the number of directors shall shorten the term of any incumbent director. Any
newly created or eliminated directorships resulting from an increase or decrease
shall be apportioned by the Board among the three classes of directors so as to
maintain such classes as nearly equal in number as possible.
Section 3. Election and Term. Except as provided in Section 4 of this
Article III, directors to fill the class of directors whose terms are expiring
at such meeting shall be elected at the annual meeting of the stockholders, and
each such director shall be elected for a three year term and until his
successor shall have been elected and shall qualify, or until his death,
resignation or removal from office. Directors need not be stockholders of the
corporation.
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Section 4. Vacancies and Newly Created Directorships. If the office of
any director or directors becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, or the number
of directors constituting the whole Board shall be increased, a majority of the
remaining or existing directors, though less than a quorum, may choose a
successor or successors, or the director or directors to fill the new
directorship or directorships, who shall hold office for the unexpired term in
respect to which such vacancy occurred or, in the case of a new directorship or
directorships, until the next annual meeting of the stockholders at which
members of the director's class are elected.
Section 5. Removal. A director may be removed only for cause. For this
purpose, "cause" means (i) the director's commission of an act of fraud or
embezzlement against the Corporation; (ii) conviction of the director of a
felony or a crime involving moral turpitude; (iii) the director's gross
negligence or willful misconduct in performing the director's duties to the
Corporation or its stockholders; or (iv) a director's breach of fiduciary duty
owed to the Corporation.
Section 6. Nominations for Directors. Nominations for election to the
Board of Directors of the corporation at a meeting of the stockholders may be
made by the Board of Directors, or on behalf of the Board of Directors by a
Nominating Committee appointed by the Board of Directors, or by any stockholder
of the corporation entitled to vote for the election of directors at such
meeting. Such nominations, other than those made by or on behalf of the Board of
Directors, shall be made by notice in writing and mailed by certified mail, to
the secretary of the corporation and (i) in the case of an annual meeting,
received no later than March 1 of any calendar year; provided, however, that if
less than 35 days' notice of a meeting of stockholders called for the election
of directors is given to the stockholders, such nomination by such stockholder
shall have been made or delivered to the secretary of the corporation not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed, and (ii) in the case of a special meeting of
stockholders, received not later than the close of business on the tenth day
following the day on which notice of the date of the meeting was mailed or
public disclosure of the date of the meeting was made, whichever occurs first.
Such notice shall set forth as to each proposed nominee who is not an incumbent
director (i) the name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee and the nominating
stockholder, and (iv) any other information concerning the nominee that must be
disclosed of nominees in proxy solicitations pursuant to Rule 14(a) of the
Securities Exchange Act of 1934, as amended.
The chairman of the board, or in his absence the president, may, if the
facts warrant, determine and declare to the meeting of stockholders that
nomination was not made in accordance with the foregoing procedure and that the
defective nomination shall be disregarded.
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ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The first meeting of each newly elected Board
of Directors shall be held at the location of and immediately following the
annual meeting of stockholders, and no notice of such meeting shall be necessary
to the newly elected directors in order legally to constitute the meeting,
provided a quorum shall be present; or the Board may meet at such place and time
as shall be fixed by the consent in writing of all the directors. All meetings
of the Board of Directors may be held at such place, either within or without
the State of Delaware, as from time to time shall be determined by the Board of
Directors.
Section 2. Regular Meetings. Regular meetings of the Board may be held
at such time and place and on such notice, if any, as shall be determined from
time to time by the Board.
Section 3. Special Meetings. Special meetings of the Board may be
called by the President or the Chairman of the Board on twenty-four hours'
notice to each director, delivered either personally or by mail or by telegram
or telecopier. Special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of one
director.
Section 4. Quorum and Voting. At all meetings of the Board, a majority
of the directors at the time in office shall be necessary and sufficient to
constitute a quorum for the transaction of business; and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, the certificate of incorporation or these bylaws. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 5. Telephone Meetings. Directors may attend any meeting of the
Board or any committee thereof by conference telephone, radio, television or
similar means of communication by means of which all persons participating in
the meeting can hear each other, and all members so attending shall be deemed
present at the meeting for all purposes including the determination of whether a
quorum is present.
Section 6. Action by Written Consent. Any action required or permitted
to be taken by the Board or any committee thereof, under the applicable
provisions of any statute, the certificate of incorporation, or these bylaws,
may be taken without a meeting if a consent in writing, setting forth the action
so taken, is signed by all the members of the Board or committee, as the case
may be.
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ARTICLE V
COMMITTEES
Section 1. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more directors to
constitute an Executive Committee, which Committee, to the extent provided in
such resolution, shall have and may exercise all of the authority of the Board
of Directors in the business and affairs of the corporation except where action
by the Board of Directors is expressly required by statute. The Executive
Committee shall keep regular minutes of its proceedings and report the same to
the Board when required.
Section 2. Other Committees. The Board of Directors may similarly
create other committees for such terms and with such powers and duties as the
Board deems appropriate.
Section 3. Committee Rules; Quorum. Each committee may adopt rules
governing the method of calling and time and place of holding its meetings.
Unless otherwise provided by the Board of Directors, a majority of any committee
shall constitute a quorum for the transaction of business, and the act of a
majority of the members of such committee present at a meeting at which a quorum
is present shall be the act of such committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
The Board of Directors shall have authority to determine, from time to
time, the amount of compensation, if any, which shall be paid to its members for
their services as directors and as members of committees. The Board shall also
have power in its discretion to provide for and to pay to directors rendering
services to the corporation not ordinarily rendered by directors as such,
special compensation appropriate to the value of such services as determined by
the Board from time to time. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
ARTICLE VII
NOTICES
Section 1. Methods of Notice. Whenever any notice is required to be
given to any stockholder, director or committee member under the provisions of
any statute, the certificate of incorporation or these bylaws, such notice shall
be delivered personally or shall be given in writing by mail addressed to such
stockholder, director or committee member at such address as appears on the
books of the corporation, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail with postage
thereon prepaid. Notice to directors and committee members may also be given by
telegram, which notice shall be
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deemed to be given at the time it is delivered to the telegraph office, or by
telecopy, which notice shall be deemed to be given at the time it is transmitted
or in person, which notice shall be deemed to be given when received.
Section 2. Waiver of Notice. Whenever any notice is required to be
given to any stockholder, director or committee member under the provisions of
any statute, the certificate of incorporation or these bylaws, a waiver thereof
in writing signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance at any meeting shall constitute a waiver of
notice thereof except as otherwise provided by statute.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The executive officers of the
corporation shall consist of at least a President and a Secretary, each of whom
shall be elected by the Board of Directors. The Board of Directors may also
elect as officers of the corporation a Chairman of the Board, one or more Vice
Presidents, one or more of whom may be designated Executive or Senior Vice
Presidents and may also have such descriptive titles as the Board shall deem
appropriate, and a Treasurer. Any two or more offices may be held by the same
person.
Section 2. Election and Qualification. The Board of Directors at its
first meeting after each annual meeting of stockholders shall elect the officers
of the corporation.
Section 3. Other Officers and Agents. The Board may elect or appoint
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, and
such other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 4. Salaries. The salaries of all officers of the corporation
shall be fixed by the Board of Directors except as otherwise directed by the
Board.
Section 5. Term, Removal and Vacancies. The officers of the corporation
shall hold office until their successors are chosen and qualify. Any officer or
agent of the corporation may be removed at any time by the affirmative vote of a
majority of the Board of Directors, or by the President. Any vacancy occurring
in any office of the corporation may be filled by the Board of Directors or
otherwise as provided in this Article.
Section 6. Execution of Instruments. The Chairman of the Board and the
President (and such other officers as are authorized thereunto by resolution of
the Board of Directors) may execute in the name of the corporation bonds, notes,
debentures and other evidences of indebtedness, stock certificates, deeds,
mortgages, deeds of trust, indentures, contracts, leases, agreements and other
instruments, requiring a seal under the seal of the corporation, and may
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execute such documents where not requiring a seal, except where such documents
are required by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be exclusively delegated to some other
officer or agent of the corporation.
Section 7. Duties of Officers. The duties and powers of the officers of
the corporation shall be as provided in these bylaws, or as provided for
pursuant to these bylaws, or (except to the extent inconsistent with these
bylaws or with any provision made pursuant hereto) shall be those customarily
exercised by corporate officers holding such offices.
Section 8. Chairman of the Board. The Chairman of the Board shall
preside when present at all meetings of the Board of Directors and at all
meetings of the stockholders. He shall advise and counsel the other officers of
the corporation and shall exercise such powers and perform such duties as shall
be assigned to or required of him from time to time by the Board of Directors.
The Chairman of the Board shall have all of the powers granted by the bylaws to
the President and from time to time may delegate all, or any, of his powers and
duties to the President.
Section 9. President. The President shall be ex-officio a member of all
standing committees, have general powers of oversight, supervision and
management of the business and affairs of the corporation, and see that all
orders and resolutions of the Board of Directors are carried into effect.
In the event another executive officer has been designated Chief
Executive Officer of the corporation by the Board of Directors, then (i) such
other executive officer shall have all of the powers granted by the bylaws to
the President; and (ii) the President shall, subject to the powers of
supervision and control thereby conferred upon the Chief Executive Officer, be
the chief operating officer of the corporation and shall have all necessary
powers to discharge such responsibility including general supervision of the
affairs of the corporation and general and active control of all of its
business.
The President shall perform all the duties and have all the powers of
the Chairman of the Board in the absence of the Chairman of the Board.
Section 10. Vice Presidents. The Vice Presidents in the order
determined by the Board of Directors shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
shall perform such other duties as the Board of Directors, the Chairman of the
board and the President may prescribe.
Section 11. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the committees of the Board of Directors when required.
Except as may be otherwise provided in these bylaws, he shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors and the President. He shall keep in safe custody the seal
of the corporation, if any, and shall have authority to affix the same to any
instrument requiring it,
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an when so affixed it may be attested by his signature. The Board of Directors
may give general authority to any other officer to affix the seal of the
corporation and to attest the affixing by his signature. In the absence of the
Treasurer and all Assistant Treasurers, the Secretary shall perform all the
duties and have all the powers of the Treasurer.
Section 12. Assistant Secretaries. The Assistant Secretaries in the
order determined by the Board of Directors shall, in the absence or disability
of the Secretary, perform the duties and exercise the powers of the Secretary
and shall perform such other duties as the Board of Directors, the Chairman of
the Board and President may prescribe.
Section 13. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, the Chairman of the Board and the President, whenever
they may require it, an account of all of his transactions as Treasurer and of
the financial condition of the corporation.
Section 14. Assistant Treasurers. The Assistant Treasurers in the order
determined by the Board of Directors shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as the Board of Directors, the Chairman of the Board
and the President may prescribe.
ARTICLE IX
SHARES AND STOCKHOLDERS
Section 1. Certificates Representing Shares. Every holder of stock in
the corporation shall be entitled to have a certificate signed by, or in the
name of the corporation by the Chairman or Vice Chairman of the Board of
Directors, or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation, certifying the number of shares owned by him in the corporation.
The signature of any such officer may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of its issuance. If the corporation shall be authorized to
issue more than one class of stock or more than one series of any class, the
powers, 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 certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of the State of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the corporation shall
issue to
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represent such class or series of stock 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 or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
Section 2. Transfer of Shares. Subject to valid transfer restrictions
and to stop-transfer orders directed in good faith by the corporation to any
transfer agent to prevent possible violations of federal or state securities
laws, rules or regulations, or for any other lawful purpose, upon surrender to
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 3. Fixing Record Date.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the date on which notice
is given, or, if notice is waived, at the close of business on the date next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by this Section, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by statute, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
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(c) In order that the corporation may determine the stockholders
entitled to receive payment for any dividend or other distribution or allotment
of any rights or the stockholders entitled to receive any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record for determining stockholders for
any such purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
Section 4. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of any share or shares to receive dividends, and to vote as such owner,
and for all other purposes as such owner; and the corporation shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
Section 5. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
ARTICLE X
GENERAL
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, or of the resolutions, if any, providing for any series of stock, may be
declared by the Board of Directors at any meeting thereof, or by the Executive
Committee at any meeting thereof. Dividends may be paid in cash, in property or
in shares of the capital stock of the corporation, subject to the provisions of
the certificate of incorporation or of the resolutions, if any, providing for
any series of stock.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in the absolute discretion, deem proper
as a reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose or purposes as the directors shall think conducive to the interests of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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Section 3. Shares of Other Corporations. The Chairman of the Board, the
President and any Vice President is authorized to vote, represent and exercise
on behalf of the corporation all rights incident to any and all shares of any
other corporation or other entity standing in the name of the corporation. The
authority herein granted to said officer may be exercised either by said officer
in person or by any person authorized so to do by proxy or power of attorney
duly executed by said officer. Notwithstanding the above, however, the Board of
Directors, in its discretion, may designate by resolution any additional person
to vote or represent said shares of other corporations and other entities.
Section 4. Checks. All checks, drafts, bills of exchange or demands for
money of the corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 5. Corporate Records. The corporation shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders giving the names and
addresses of all stockholders and the number and class and series, if any, of
shares held by each. All other books and records of the corporation may be kept
at such place or places within or without the State of Delaware as the Board of
Directors may from time to time determine.
Section 6. Fiscal Year. The fiscal year of the corporation shall be
fixed by the Board of Directors; if no so fixed, it shall be the calendar year.
ARTICLE XI
AMENDMENTS
These bylaws may be altered, amended or repealed or new bylaws may be
adopted at any annual meeting of the stockholders or at any special meeting of
the stockholders at which a quorum is present or represented, if notice thereof
is contained in the notice of such special meeting, by the affirmative vote of
the holders of 66-2/3 percent of the shares entitled to vote at such meeting, or
by the affirmative vote of a majority of the entire Board of Directors at any
regular meeting of the Board or at any special meeting of the Board.