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EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
of
UNO RESTAURANT CORPORATION
A Delaware Corporation
Adopted: November 15, 1994
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Date
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BY-LAWS
TABLE OF CONTENTS
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ARTICLE I. STOCKHOLDERS................................................ 1
Section 1.1. Annual Meeting........................ 1
Section 1.2. Special Meetings...................... 1
Section 1.3. Notice of Meeting..................... 1
Section 1.4. Quorum................................ 2
Section 1.5. Proxies and Voting.................... 2
Section 1.6. Action at Meeting..................... 2
Section 1.7. Action Without Meeting................ 2
Section 1.8. Voting of Shares of Certain Holders... 2
Section 1.9. Stockholder Lists..................... 3
ARTICLE II. BOARD OF DIRECTORS.......................................... 4
Section 2.1. Powers................................ 4
Section 2.2. Number of Directors; Qualifications... 4
Section 2.3. Nomination of Directors............... 4
Section 2.4. Election of Directors................. 4
Section 2.5. Vacancies; Reduction of the Board..... 5
Section 2.6. Enlargement of the Board.............. 5
Section 2.7. Tenure and Resignation................ 5
Section 2.8. Removal............................... 5
Section 2.9. Meetings.............................. 5
Section 2.10. Notice of Meeting..................... 6
Section 2.11. Agenda................................ 6
Section 2.12. Quorum................................ 6
Section 2.13. Action at Meeting..................... 6
Section 2.14. Action Without Meeting................ 6
Section 2.15. Committees............................ 7
ARTICLE III. OFFICERS.................................................... 7
Section 3.1. Enumeration........................... 7
Section 3.2. Election.............................. 7
Section 3.3. Qualification......................... 7
Section 3.4. Tenure................................ 7
Section 3.5. Removal............................... 8
Section 3.6. Resignation........................... 8
Section 3.7. Vacancies............................. 8
Section 3.8. Chairman of the Board................. 8
Section 3.9. President............................. 8
Section 3.10. Vice-Presidents....................... 8
Section 3.11. Treasurer and Assistant Treasurers.... 8
Section 3.12. Secretary and Assistant Secretaries... 9
Section 3.13. Other Powers and Duties............... 9
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ARTICLE IV. CAPITAL STOCK............................................... 9
Section 4.1. Stock Certificates.................... 9
Section 4.2. Transfer of Shares.................... 10
Section 4.3. Record Holders........................ 10
Section 4.4. Record Date........................... 10
Section 4.5. Transfer Agent and Registrar for
Shares of Corporation................. 11
Section 4.6. Loss of Certificates.................. 11
Section 4.7. Restrictions on Transfer.............. 11
Section 4.8. Miscellaneous......................... 12
ARTICLE V. DIVIDENDS................................................... 12
Section 5.1. Declaration of Dividends.............. 12
Section 5.2. Reserves.............................. 12
ARTICLE VI. POWERS OF OFFICERS TO CONTRACT WITH THE CORPORATION......... 12
ARTICLE VII. INDEMNIFICATION............................................. 13
Section 7.1. Definitions........................... 13
Section 7.2. Actions in Name of the Corporation
or Stockholder........................ 14
Section 7.3. Other Actions......................... 14
Section 7.4. Determination of Indemnification...... 14
Section 7.5. Advances of Attorney's Fees and Other
Costs................................. 15
Section 7.6. Presumptions upon Termination of
Proceeding............................ 15
Section 7.7. Indemnification not Exclusive......... 15
Section 7.8. Indemnification Agreements............ 15
Section 7.9. Insurance............................. 16
Section 7.10. Employee Benefit Plans................ 16
ARTICLE VIII. MISCELLANEOUS PROVISIONS.................................... 16
Section 8.1. Certificate of Incorporation.......... 16
Section 8.2. Fiscal Year........................... 16
Section 8.3. Corporate Seal........................ 16
Section 8.4. Execution of Instruments.............. 16
Section 8.5. Voting of Securities.................. 16
Section 8.6. Evidence of Authority................. 17
Section 8.7. Corporate Records..................... 17
Section 8.8. Charitable Contributions.............. 17
ARTICLE IX. AMENDMENTS.................................................. 17
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BY-LAWS
OF
Uno Restaurant Corporation
(A Delaware Corporation)
ARTICLE I.
Stockholders
Section 1.1. Annual Meeting. The annual meeting of the
stockholders of the corporation shall be held on such date, at such time and
place within or without the State of Delaware as may be designated in the notice
of meeting. If the day fixed for the annual meeting shall fall on a legal
holiday, the meeting shall be held on the next succeeding day not a legal
holiday. If the annual meeting is omitted on the day herein provided, a special
meeting may be held in place thereof, and any business transacted at such
special meeting in lieu of annual meeting shall have the same effect as if
transacted or held at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the
stockholders may be called at any time by the president or by the Board of
Directors. Special meetings of the stockholders shall be held at such time,
date and place within or outside of the State of Delaware as may be designated
in the notice of such meeting.
Section 1.3. Notice of Meeting. A written notice stating the
place, date, and hour of each meeting of the stockholders, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be given to
each stockholder entitled to vote at such meeting, and to each stockholder who,
under the Certificate of Incorporation or these By-laws, is entitled to such
notice, by delivering such notice to such person or leaving it at their
residence or usual place of business, or by mailing it, postage prepaid, and
addressed to such stockholder at his address as it appears upon the books of the
corporation, at least ten (10) days and not more than sixty (60) before the
meeting. Such notice shall be given by the secretary, an assistant secretary,
or any other officer or person designated either by the secretary or by the
person or persons calling the meeting.
The requirement of notice to any stockholder may be waived by a
written waiver of notice, executed before or after the meeting by the
stockholder or his attorney thereunto duly authorized, and filed with the
records of the meeting, or if communication with such stockholder is unlawful,
or by attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice. A waiver of notice of any regular or special
meeting of the stockholders need not specify the purposes of the meeting.
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If a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the ad adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.4. Quorum. The holders of a majority in interest of all
stock issued, outstanding and entitled to vote at a meeting shall constitute a
quorum. Any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is present.
Section 1.5. Voting and Proxies. Stockholders shall have one vote
for each share of stock entitled to vote owned by them of record according to
the books of the corporation, unless otherwise provided by law or by the
Certificate of Incorporation. Stockholders may vote either in person or by
written proxy, but no proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Proxies shall be filed
with the secretary of the meeting, or of any adjournment thereof. Except as
otherwise limited therein, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting. A proxy purporting to be executed
by or on behalf of a stockholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to stock held in the name of two or more
persons shall be valid if executed by one of them unless at or prior to exercise
of the proxy the corporation receives a specific written notice to the contrary
from any one of them.
Section 1.6. Action at Meeting. When a quorum is present at any
meeting, a plurality of the votes properly cast for election to any office shall
elect to such office, and a majority of the votes properly cast upon any
question other than election to an office shall decide such question, except
where a larger vote is required by law, the Certificate of Incorporation or
these by-laws. No ballot shall be required for any election unless requested
by a stockholder present or represented at the meeting and entitled to vote in
the election.
Section 1.7. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the stockholders may be taken without a
meeting if the minimum number of stockholders necessary to authorize or take
such action and entitled to vote on the matter consent to the action in writing
and the consents are filed with the records of the meetings of stockholders.
Such consent shall be treated for all purposes as a vote at a meeting.
Section 1.8. Voting of Shares of Certain Holders. Shares of stock
of the corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may prescribe, or, in
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the absence of such provision, as the Board of Directors of such corporation may
determine.
Shares of stock of the corporation standing in the name of a
deceased person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator without a
transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares of capital stock of the corporation
standing in the name of a trustee may be voted by him.
Shares of stock of the corporation 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.
A stockholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation 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 its own stock held by the corporation in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares.
Section 1.9. Stockholder Lists. The secretary (or the
corporation's transfer agent or other person authorized by these By-laws or by
law) shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stock holders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, 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.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
ARTICLE II.
Board of Directors
Section 2.1. Powers. Except as reserved to the stockholders by
law, by the Certificate of Incorporation or by these By-laws, the business of
the corporation shall be managed under the direction of the Board of Directors,
who shall have and may exercise
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all of the powers of the corporation. In particular, and without limiting the
foregoing, the Board of Directors shall have the power to issue or reserve for
issuance from time to time the whole or any part of the capital stock of the
corporation which may be authorized from time to time to such person, for such
consideration and upon such terms and conditions as they shall determine,
including the granting of options, warrants or conversion or other rights to
stock.
Section 2.2. Number of Directors; Qualifications. The number of
Directors on the Board of Directors shall be determined as provided in the
Certificate of Incorporation of the corporation. No Director need be a
stockholder.
Section 2.3. Nomination of Directors.
(a) Nominations for the election of Directors may be made by
the Board of Directors or by any stockholder entitled to vote for the election
of Directors. Nominations by stockholders shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
secretary of the corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of Directors;
provided, however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the secretary of the corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to stock holders.
(b) Each notice under subsection (a) shall set forth (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, and (iii) the number of shares of stock of the corporation which
are beneficially owned by each such nominee.
(c) The chairman of the meeting of stockholders may, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 2.4. Election of Directors. The initial Board of Directors
shall be elected by the incorporator(s) at the first meeting thereof and
thereafter by the stockholders at their annual meeting or at any special
meeting the notice of which specifies the election of Directors as an item of
business for such meeting.
The Directors of the corporation shall be divided into three
classes; Class I, Class II and Class III. Each class shall consist as nearly
as may be possible, of one-third of the whole number of the Board of Directors.
In the election of Directors at the 1988 Annual Meeting of the stockholders, the
Class I
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Directors shall be elected to hold office for a term to expire at the first
annual meeting of the stockholders thereafter; the Class II Directors shall be
elected to hold office for a term to expire at the second annual meeting of the
stockholders thereafter; and the Class III Directors shall be elected to hold
office for a term to expire at the third annual meeting of the stockholders
thereafter; and in the case of each class, until their respective successors are
duly elected and qualified. At each annual election held after the 1988 annual
meeting of the stockholders, the Directors elected to succeed those whose terms
expire shall be identified as being the same class as the Directors they succeed
and shall be elected to hold office for a term to expire at the third annual
meeting of the stockholders after their election, and until their respective
successors are duly elected and qualified. If the number of Directors changes,
any increase or decrease in Directors shall be apportioned among the classes so
as to maintain all classes as equal in number as possible, and any additional
Director elected to any class shall hold office for a term which shall coincide
with the terms of the other Directors in such class and until his successor is
duly elected and qualified.
Section 2.5. Vacancies; Reduction of the Board. Any vacancy in the
Board of Directors, however occurring, including a vacancy resulting from the
enlargement of the Board of Directors, shall be filled as provided in the
Certificate of Incorporation of the corporation.
Section 2.6. Enlargement of the Board. The Board of Directors may
be enlarged as provided in the Certificate of Incorporation of the corporation.
Section 2.7. Tenure and Resignation. Except as otherwise provided
by law, by the Certificate of Incorporation or by these By-laws, Directors shall
hold office until the annual meeting of stockholders at which their term expires
and thereafter until their successors are chosen and qualified. Any Director
may resign by delivering or mailing postage prepaid a written resignation to the
corporation at its principal office or to the president, secretary or assistant
secretary, if any. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
Section 2.8. Removal. A Director, whether elected by the
stockholders or Directors, may be removed from office in the manner provided by
the Certificate of Incorporation of the corporation.
Section 2.9. Meetings. Regular meetings of the Board of Directors
may be held without call or notice at such times and such places within or
without the State of Delaware as the Board may, from time to time, determine,
provided that notice of the first regular meeting following any such
determination shall be given to Directors absent from such determination. A
regular
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meeting of the Board of Directors shall be held without notice immediately
after, and at the same place as, the annual meeting of the stockholders or the
special meeting of the stockholders held in place of such annual meeting, unless
a quorum of the Directors is not then present. Special meetings of the Board of
Directors may be held at any time and at any place designated in the call of the
meeting when called by the president, treasurer, or one or more Directors.
Members of the Board of Directors or any committee elected thereby may
participate in a meeting of such board or committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at the meeting.
Section 2.10. Notice of Meeting. It shall be sufficient notice to
a Director to send notice by mail at least seventy-two (72) hours before the
meeting addressed to such person at his usual or last known business or
residence address or to give notice to such person in person or by telephone at
least twenty-four (24) hours before the meeting. Notice shall be given by the
secretary, assistant secretary, if any, or by the officer or Directors calling
the meeting. The requirement of notice to any Director may be waived by a
written waiver of notice, executed by such person before or after the meeting or
meetings, and filed with the records of the meeting, or by attendance at the
meeting without protesting prior thereto or at its commencement the lack of
notice. A notice or waiver of notice of a Directors' meeting need not specify
the purposes of the meeting.
Section 2.11. Agenda. Any lawful business may be transacted at a
meeting of the Board of Directors, notwithstanding the fact that the nature of
the business may not have been specified in the notice or waiver of notice of
the meeting.
Section 2.12. Quorum. At any meeting of the Board of Directors, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business. Any meeting may be adjourned by a majority of the
votes cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
Section 2.13. Action at Meeting. Any motion adopted by vote 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, except where a different vote is
required by law, by the Certificate of Incorporation or by these By-laws. The
assent in writing of any Director to any vote or action of the Directors taken
at any meeting, whether or not a quorum was present and whether or not the
Director had or waived notice of the meeting, shall have the same effect as if
the Director so assenting was present at such meeting and voted in favor of such
vote or action.
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Section 2.14. Action Without Meeting. Any action by the Directors
may be taken without a meeting if all of the Directors consent to the action in
writing and the consents are filed with the records of the Directors' meetings.
Such consent shall be treated for all purposes as a vote of the Directors at a
meeting.
Section 2.15. Committees. The Board of Directors may, by the
affirmative vote of a majority of the Directors then in office, appoint an
executive committee or other committees consisting of one or more Directors and
may by vote delegate to any such committee some or all of their powers except
those which by law, the Certificate of Incorporation or these By-laws they may
not delegate. Unless the Board of Directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the Board of Directors or such rules, its meetings shall be called,
notice given or waived, its business conducted or its action taken as nearly as
may be in the same manner as is provided in these By-laws with respect to
meetings or for the conduct of business or the taking of actions by the Board of
Directors. The Board of Directors shall have power at any time to fill
vacancies in, change the membership of, or discharge any such committee at any
time. The Board of Directors shall have power to rescind any action of any
committee, but no such rescission shall have retroactive effect.
ARTICLE III.
Officers
Section 3.1. Enumeration. The officers shall consist of a chairman
of the board, president, a treasurer, a secretary and such other officers and
agents (including one or more vice-presidents, assistant treasurers and
assistant secretaries), as the Board of Directors may, in their discretion,
determine.
Section 3.2. Election. The president, treasurer and secretary
shall be elected annually by the Directors at their first meeting following the
annual meeting of the stockholders or any special meeting held in lieu of the
annual meeting. Other officers may be chosen by the Directors at such meeting
or at any other meeting.
Section 3.3. Qualification. An officer may, but need not, be a
Director or stockholder. Any two or more offices may be held by the same
person. Any officer may be required by the Directors to give bond for the
faithful performance of his duties to the corporation in such amount and with
such sureties as the Directors may determine. The premiums for such bonds may
be paid by the corporation.
Section 3.4. Tenure. Except as otherwise provided by the
Certificate of Incorporation or these By-laws, the term of office of each
officer shall be for one year or until his successor is elected and qualified or
until his earlier resignation or removal.
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Section 3.5. Removal. Any officer may be removed from office,
with or without cause, by the affirmative vote of a majority of the Directors
then in office; provided, however, that an officer may be removed for cause only
after reasonable notice and opportunity to be heard by the Board of Directors
prior to action thereon.
Section 3.6. Resignation. Any officer may resign by delivering or
mailing postage prepaid a written resignation to the corporation at its
principal office or to the president, secretary, or assistant secretary, if
any, and such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some event.
Section 3.7. Vacancies. A vacancy in any office arising from any
cause may be filled for the unexpired portion of the term by the Board of
Directors.
Section 3.8. Chairman of the Board. The Board of Directors may
appoint a chairman of the board and may designate the chair man of the board as
chief executive officer. If the Board of Directors appoints a chairman of the
board, he shall perform such duties and possess such powers as are assigned to
him by the Board of Directors.
Section 3.9. President. The president shall be the chief executive
officer of the corporation, unless a chairman of the board is so designated.
Unless a chairman of the board is so designated or except as otherwise voted by
the Board of Directors, the president shall preside at all meetings of the
stockholders and of the Board of Directors at which present. The president
shall have such duties and powers as are commonly incident to the office and
such duties and powers as the Board of Directors shall from time to time
designate.
Section 3.10. Vice-President(s). The vice-president(s), if any,
shall have such powers and perform such duties as the Board of Directors may
from time to time determine.
Section 3.11. Treasurer and Assistant Treasurers. The treasurer,
subject to the direction and under the supervision and control of the Board of
Directors, shall have general charge of the financial affairs of the
corporation. The treasurer shall have custody of all funds, securities and
valuable papers of the corporation, except as the Board of Directors may
otherwise provide. The treasurer shall keep or cause to be kept full and
accurate records of account which shall be the property of the corporation, and
which shall be always open to the inspection of each elected officer and
Director of the corporation. The treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as may
be authorized by the Board of Directors. The treasurer shall have the power to
endorse for deposit or collection all notes, checks, drafts, and other
negotiable instruments payable to the corporation.
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The treasurer shall perform such other duties as are incidental to the office,
and such other duties as may be assigned by the Board of Directors.
Assistant treasurers, if any, shall have such powers and perform
such duties as the Board of Directors may from time to time determine.
Section 3.12. Secretary and Assistant Secretaries. The secretary
shall record, or cause to be recorded, all proceedings of the meetings of the
stockholders and Directors (including committees thereof) in the book of records
of this corporation. The record books shall be open at reasonable times to the
inspection of any stockholder, Director, or officer. The secretary shall
notify the stockholders and Directors, when required by law or by these By-laws,
of their respective meetings, and shall perform such other duties as the
Directors and stockholders may from time to time prescribe. The secretary shall
have the custody and charge of the corporate seal, and shall affix the seal of
the corporation to all instruments requiring such seal, and shall certify under
the corporate seal the proceedings of the Directors and of the stockholders,
when required. In the absence of the secretary at any such meeting, a temporary
secretary shall be chosen who shall record the proceedings of the meeting in the
aforesaid books.
Assistant secretaries, if any, shall have such powers and perform
such duties as the Board of Directors may from time to time designate.
Section 3.13. Other Powers and Duties. Subject to these By-laws
and to such limitations as the Board of Directors may from time to time
prescribe, the officers of the corporation shall each have such powers and
duties as generally pertain to their respective offices, as well as such powers
and duties as from time to time may be conferred by the Board of Directors.
ARTICLE IV.
Capital Stock
Section 4.1. Stock Certificates. Each stockholder shall be
entitled to a certificate representing the number of shares of the capital stock
of the corporation owned by such person in such form as shall, in conformity to
law, be prescribed from time to time by the Board of Directors. Each
certificate shall be signed by the president or vice-president and secretary or
assistant secretary or such other officers designated by the Board of Directors
from time to time as permitted by law, shall bear the seal of the corporation,
and shall express on its face its number, date of issue, class, the number of
shares for which, and the name of the person to whom, it is issued. The
corporate seal and any or all of the signatures of corporation officers may be
facsimile if the stock certificate is manually counter-signed by an authorized
person on behalf of a transfer agent or registrar other than the corporation or
its employee.
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If an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have ceased to be
such before the 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
time of its issue.
Section 4.2. Transfer of Shares. Title to a certificate of stock
and to the shares represented thereby shall be transferred only on the books of
the corporation by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred, a new
certificate or certificates shall be issued according to the interests of the
parties.
Section 4.3. Record Holders. Except as otherwise may be required
by law, by the Certificate of Incorporation or by these By-laws, the corporation
shall be entitled to treat the record holder of stock as shown on its books as
the owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock, until the shares have been transferred on the
books of the corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the corporation
of his post office address.
Section 4.4. Record Date. In order that the corporation may
determine the stockholders entitled to receive notice of or to vote at any
meeting of stockholders or any adjournments thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty days prior to any
other action. In such case only stockholders of record on such record date
shall be so entitled notwithstanding any transfer of stock on the books of the
corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which
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the first written consent is expressed; and (iii) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
Section 4.5. Transfer Agent and Registrar for Shares of
Corporation. The Board of Directors may appoint a transfer agent and a
registrar of the certificates of stock of the corporation. Any transfer agent so
appointed shall maintain, among other records, a stockholders' ledger, setting
forth the names and ad dresses of the holders of all issued shares of stock of
the corporation, the number of shares held by each, the certificate numbers
representing such shares, and the date of issue of the certificates representing
such shares. Any registrar so appointed shall maintain, among other records, a
share register, setting forth the total number of shares of each class of shares
which the corporation is authorized to issue and the total number of shares
actually issued. The stockholders' ledger and the share register are hereby
identified as the stock transfer books of the corporation; but as between the
stockholders' ledger and the share register, the names and addresses of
stockholders, as they appear on the stockholders' ledger maintained by the
transfer agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as they appear
upon the stockholders' ledger, shall be conclusive evidence of who are the
stockholders entitled to receive notice of the meetings of stockholders, to
vote at such meetings, to examine a complete list of the stockholders entitled
to vote at meetings, and to own, enjoy and exercise any other property or rights
deriving from such shares against the corporation. Stockholders, but not the
corporation, its Directors, officers, agents or attorneys, shall be responsible
for notifying the transfer agent, in writing, of any changes in their names or
addresses from time to time, and failure to do so will relieve the corporation,
its other stockholders, Directors, officers, agents and attorneys, and its
transfer agent and registrar, of liability for failure to direct notices or
other documents, or pay over or transfer dividends or other property or rights,
to a name or address other than the name and address appearing in the
stockholders' ledger maintained by the transfer agent.
Section 4.6. Loss of Certificates. In case of the loss,
destruction or mutilation of a certificate of stock, a replacement certificate
may be issued in place thereof upon such terms as the Board of Directors may
prescribe, including, in the discretion of the Board of Directors, a
requirement of bond and indemnity to the corporation.
Section 4.7. Restrictions on Transfer. Every certificate for shares
of stock which are subject to any restriction on transfer, whether pursuant to
the Certificate of Incorporation, the By-laws or any agreement to which the
corporation is a party, shall have the fact of the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement that the corporation will
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furnish a copy to the holder of such certificate upon written request and
without charge.
Section 4.8. Miscellaneous. The amount and classes of the capital
stock and the par value, if any, of the shares, shall be as fixed in the
Certificate of Incorporation. At all times when there are two or more classes
of stock, the several classes of stock shall conform to the description and the
terms and have the respective preferences, voting powers, restrictions and
qualifications set forth in the Certificate of Incorporation and these By-laws.
Every certificate issued when the corporation is authorized to issue more than
one class or series of stock shall set forth on its face or back either (i) the
full text of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series authorized to be issued,
or (ii) a statement of the existence of such preferences, powers, qualifications
and rights, and a statement that the corporation will furnish a copy thereof to
the holder of such certificate upon written request and without charge.
ARTICLE V.
Dividends
Section 5.1. Declaration of Dividends. Except as otherwise
required by law or by the Certificate of Incorporation, the Board of Directors
may, in its discretion, declare what, if any, dividends shall be paid from the
surplus or from the net profits of the corporation upon the stock of the
corporation; provided, however, that no dividend shall be declared or paid the
payment of which would diminish the amount of the paid-in capital of the
corporation. Dividends may be paid in cash, in property, in shares of the
corporation's stock, or in any combination thereof. Dividends shall be payable
upon such dates as the Board of Directors may designate.
Section 5.2. Reserves. Before the payment of any dividend and
before making any distribution of profits, the Board of Directors, from time to
time and in its absolute discretion, shall have power to set aside out of the
surplus or net profits of the corporation such sum or sums as the Board of
Directors deems proper and sufficient as a reserve fund to meet contingencies
or for such other purpose as the Board of Directors shall deem to be in the best
interests of the corporation, and the Board of Directors may modify or abolish
any such reserve.
ARTICLE VI.
Powers of Officers to Contract
With the Corporation
Any and all of the Directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and perform any
contract or agreement of any nature between the
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corporation and themselves, or any and all of the individuals from time to time
constituting the Board of Directors of the corporation, or any firm or
corporation in which any such Director may be interested, directly or
indirectly, whether such individual, firm or corporation thus contracting with
the corporation shall thereby derive personal or corporate profits or benefits
or otherwise; provided, that (i) the material facts of such interest are
disclosed or are known to the Board of Directors or committee thereof which
authorizes such contract or agreement; (ii) if the material facts as to such
person's relationship or interest are disclosed or are known to the stockholders
entitled to vote thereon, and the contract is specifically approved in good
faith by a vote or the stockholders; or (iii) the contract or agreement is fair
as to the corporation as of the time it is authorized, approved or ratified by
the Board of Directors, a committee thereof, or the stockholders. Any Director
of the corporation who is interested in any transaction as aforesaid may
nevertheless be counted in determining the existence of a quorum at any meeting
of the Board of Directors which shall authorize or ratify any such transaction.
This Article shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common or statutory law
applicable thereto.
ARTICLE VII.
Indemnification
Section 7.1. Definitions. For purpose of this Article VII:
(a) "Covered Person" means an individual: (i) who is a
present or former Director, officer, agent or employee of the corporation or who
serves or served another corporation, partner ship, joint venture, trust,
employee benefit plan or other enterprise in one of those capacities or as
trustee, partner or fiduciary at the request of the corporation; and (ii) who
by reason of his position was, is, or is threatened to be made a party to a
Proceeding. It shall also include such person's heirs, executors and
administrators.
(b) "Proceeding" includes any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative, and any claim which could be the subject of such a proceeding.
(c) "Disinterested Director" means a Director who is not a
real party in interest to the Proceeding in question.
(d) "Expenses" means liabilities, including but not limited
to amounts paid in satisfaction of judgments, in compromises or as fines or
penalties, and expenses, including reasonable legal and accounting fees.
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Section 7.2. Actions in Name of the Corporation or Stock holder.
The corporation shall indemnify any Covered Person against all Expenses incurred
in connection with the defense or disposition of any Proceeding by or in the
name of the corporation or any stockholder in his capacity as such if the
Covered 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, except that no
indemnification shall be made with respect to any matter as to which such
Covered Person has been adjudicated liable for negligence or misconduct in the
performance of his duty to the corporation, unless, and only to the extent that,
the court deciding the action determines that such Covered Person is entitled to
indemnification.
Such indemnification may be provided in connection with a Proceeding
in which it is claimed that an officer or Director received an improper personal
benefit by reason of his position, regardless of whether the claim involves his
service in such capacity, subject to the foregoing limitations and to the
additional limitation that it shall not have been finally determined that an
improper personal benefit was received by the Director or officer.
Notwithstanding anything to the contrary in this Section 7.2, if any
Covered Person has been wholly successful on the merits in the defense of any
Proceeding by or in the name of the corporation or any stockholder in his
capacity as such, such Covered Person shall be indemnified by the corporation
against all Expenses incurred by him in connection therewith.
Section 7.3. Other Actions. The corporation shall indemnify any
Covered Person against any Expenses incurred in connection with the defense or
disposition of any Proceeding other than a proceeding of the type described in
Section 7.2 if the Covered Person acted in good faith, in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
Section 7.4. Determination of Indemnification. Any indemnification
hereunder, other than advancement of attorney's fees or costs of defense under
Section 7.5, shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the Covered Person is proper
in the circumstances because he has met the applicable standard of conduct set
forth in Sections 7.2 or 7.3 hereunder.
Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors, or
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(b) If such a quorum is not obtainable, or, even if
obtainable, a quorum of Disinterested Directors so
directs, by independent legal counsel in a written
opinion, or
(c) By the stockholders, by the vote of the holders of a
majority of the outstanding stock at the time entitled
to vote for directors, voting as a single class,
exclusive of any stock owned by any director or officer
who is a real party in interest to the Proceeding in
question.
Section 7.5. Advances of Attorney's Fees and Other Costs. The
corporation shall advance attorney's fees or other Expenses reasonably incurred
by a Covered Person in defending a Proceeding upon receipt of an undertaking by
or on behalf of the Covered Person to repay the amount advanced if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation for such fees and Expenses under Delaware law. Any ultimate
determination of dispute concerning indemnification shall be made by the
Delaware Court of Chancery. The corporation shall advance all fees incurred by
a Covered Person in connection with any Proceeding within twenty (20) days after
receipt by the corporation of evidence of the incurring of such costs. Any
advances and undertakings to repay hereunder shall be unsecured and interest
free. Advances hereunder shall not require approval of the Board of Directors,
stockholders, or any other person or body.
Section 7.6. Presumptions upon Termination of Proceeding. The
termination of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that a 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, did not
have reasonable cause to believe that his conduct was lawful.
Section 7.7. Indemnification Not Exclusive. The right of
indemnification provided by this Article VII shall not be exclusive of or
affect any other rights to which such Covered Person may be entitled by law,
under the Certificate of Incorporation of the corporation, under any
indemnification agreement with the corporation or otherwise.
Section 7.8. Indemnification Agreements. The corporation shall
have the express authority to enter into such agreements as the Board of
Directors deems appropriate for the indemnification of present or future
directors and officers of the corporation in connection with their service to,
or status with, the corporation or any other corporation, entity or enterprise
with whom such person is serving at the express written request of the
corporation.
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Section 7.9. Insurance. The corporation may purchase and maintain
insurance on its behalf and on behalf of any Covered Person against any
liability asserted against such Covered Person and incurred by him in any
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this Article VII.
Section 7.10. Employee Benefit Plans. If the corporation or any of
its subsidiaries or affiliates sponsors any employee benefit plan, and any
Covered Person undertakes or incurs any responsibility as a fiduciary with
respect thereto then, for purposes of indemnification of such Covered Person
under this Article VII, (i) such Covered Person shall be deemed not to have
failed to have acted in good faith and in the reasonable belief that his action
was in the best interests of the corporation if he acted in good faith and in
the reasonable belief that his action was in the best interests of the
participants or beneficiaries of said plan, and (ii) "Expenses" shall be deemed
to include any taxes or penalties assessed on such Covered Person with respect
to said plan under applicable law.
ARTICLE VIII.
Miscellaneous Provisions
Section 8.1. Certificate of Incorporation. All references in these
By-laws to the Certificate of Incorporation shall be deemed to refer to the
Restated Certificate of Incorporation of the corporation, as amended and in
effect from time to time.
Section 8.2. Fiscal Year. Except as from time to time otherwise
provided by the Board of Directors, the corporation shall have a 52-53 week
fiscal year which shall end at the close of business on the Sunday closest to
September 30th in each year.
Section 8.3. Corporate Seal. The Board of Directors shall have the
power to adopt and alter the seal of the corporation.
Section 8.4. Execution of Instruments. All deeds, leases,
transfers, contracts, bonds, notes, and other obligations authorized to be
executed by an officer of the corporation on its be half shall be signed by the
president or the treasurer except as the Board of Directors may generally or in
particular cases otherwise determine.
Section 8.5. Voting of Securities. Unless the Board of Directors
otherwise provides, the president or the treasurer may waive notice of and act
on behalf of this corporation, or appoint another person or persons to act as
proxy or attorney in fact for this corporation with or without discretionary
power and/or power of substitution, at any meeting of stockholders or
shareholders of any other corporation or organization, any of whose securities
are held by this corporation.
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Section 8.6. Evidence of Authority. A certificate by the secretary
or any assistant secretary as to any action taken by the stockholders, Directors
or any officer or representative of the corporation shall, as to all persons who
rely thereon in good faith, be conclusive evidence of such action. The exercise
of any power which by law, by the Certificate of Incorporation, or by these
By-laws, or under any vote of the stockholders or the Board of Directors, may be
exercised by an officer of the corporation only in the event of absence of
another officer or any other contingency shall bind the corporation in favor of
anyone relying thereon in good faith, whether or not such absence or contingency
existed.
Section 8.7. Corporate Records. The original, or attested copies,
of the Certificate of Incorporation, By-laws, records of all meetings of the
incorporators and stockholders, and the stock transfer books (which shall
contain the names of all stockholders and the record address and the amount of
stock held by each) shall be kept in Delaware at the principal office of the
corporation, or at an office of the corporation, or at an office of its
transfer agent or of the secretary or of the assistant secretary, if any. Said
copies and records need not all be kept in the same office. They shall be
available at all reasonable times to inspection of any stockholder for any
purpose but not to secure a list of stockholders for the purpose of selling said
list or copies thereof or for using the same for a purpose other than in the
interest of the applicant, as a stockholder, relative to the affairs of the
corporation.
Section 8.8. Charitable Contributions. The Board of Directors
from time to time may authorize contributions to be made by the corporation in
such amounts as it may determine to be reason able to corporations, trusts,
funds or foundations organized and operated exclusively for charitable,
scientific or educational purposes, no part of the net earning of which inures
to the private benefit of any stockholder or individual.
ARTICLE IX.
Amendments
These By-laws may be amended, altered or repealed in the manner
provided by the Certificate of Incorporation of the corporation.
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