EXHIBIT 3.5
AMENDED AND RESTATED BYLAWS
OF
PREMIUM STANDARD FARMS, INC.
A Delaware corporation
ARTICLE 1
STOCKHOLDERS
1.1 Place of Meetings. Every meeting of Stockholders shall be held at the
principal executive office of the Corporation or at such other place within or
without the State of Delaware as shall be specified or fixed in the notice of
such meeting or in the waiver of notice thereof.
1.2 Annual Meeting. A meeting of Stockholders shall be held annually for
the election of Directors and the transaction of other business at such hour and
on such Business Day as may be determined by the Board and designated in the
notice of meeting.
1.3 Deferred Meeting for Election of Directors, Etc. If the annual meeting
of Stockholders for the election of Directors and the transaction of other
business is not held, the Board shall call a meeting of Stockholders for the
election of Directors and the transaction of other business as soon thereafter
as convenient.
1.4 Special Meetings. A special meeting of Stockholders (other than a
special meeting for the election of Directors), unless otherwise prescribed by
statute, may be called at any time by the Chairman of the Board, the Chief
Executive Officer or by the Board. At any special meeting of Stockholders, only
such business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 1.6 hereof or
in any waiver of notice thereof given pursuant to Section 1.7 hereof.
1.5 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation, to express consent to corporate action in writing without a
meeting or (iii) 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 (b) any other lawful action, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date was adopted by the Board and which
record date shall not be (x) in the case of clause (a)(i) above, more than sixty
nor less than ten (10) calendar days before the date of such meeting, (y) in the
case of clause (a)(ii) above, more than ten (10) calendar days after the date
upon which the resolution fixing the record date was adopted by the Board and
(z) in the case of clause (a)(iii) or (b) above, more than sixty calendar days
prior to such action. If no such record date is fixed:
1.5.1 the record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
1.5.2 the record date for determining Stockholders entitled to
express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), when no prior action by
the Board is required under the General Corporation Law, shall be the first day
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; and when prior action by the Board is required
under the General Corporation Law, 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 date on which the Board adopts the resolution
taking such prior action; and
1.5.3 the record date for determining Stockholders for any purpose
other than those specified in Sections 1.5.1 and 1.5.2 shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 1.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting. Delivery made to the Corporation's
registered office in accordance with Section 1.5.2 shall be by hand or by
certified or registered mail, return receipt requested.
1.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 1.5 and 1.7 hereof, whenever under the provisions of any statute, the
Certificate of Incorporation or these Bylaws, Stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. Unless otherwise
provided by any statute, the Certificate of Incorporation or these Bylaws, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten (10) nor more than sixty (60) calendar days before the date of the
meeting, to each Stockholder entitled to notice of or to vote at such meeting.
If mailed, such notice shall be deemed to be given when deposited in the United
States mail, with postage prepaid, directed to the Stockholder at his or her
address as it appears on the records of the Corporation. An affidavit of the
Secretary or an Assistant Secretary or of the transfer agent of the Corporation
that the notice required by this Section 1.6 has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein. When a
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting originally called. If,
however, the adjournment is for more than thirty (30) calendar days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each Stockholder of record entitled
to vote at the meeting.
1.7 Waivers of Notice. Whenever the giving of any notice is required by
statute, the Certificate of Incorporation or these Bylaws, a waiver thereof, in
writing, signed by the Stockholder or Stockholders entitled to said notice, or a
waiver by electronic transmission by the Stockholder or Stockholders, whether
before or after the event as to which such notice is
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required, shall be deemed equivalent to notice. Attendance by a Stockholder at a
meeting shall constitute a waiver of notice of such meeting except when the
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting has not been lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Stockholders need be specified in any written waiver of notice, or any waiver by
electronic transmission, unless so required by statute, the Certificate of
Incorporation or these Bylaws.
1.8 List of Stockholders. The Secretary shall prepare and make, or cause
to be prepared and made, at least ten business days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of Shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, the Stockholder's
agent, or attorney, at the Stockholder's expense, for any purpose germane to the
meeting, for a period of at least ten business days prior to the meeting, (i) on
a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (ii) during ordinary business hours, at the principal place of business of
the Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable steps to
ensure that such information is available only to Stockholders of the
Corporation. If the meeting is to be held at a place, 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. If the meeting
is to be held solely by means of remote communication, the list shall be open to
the examination of any Stockholder during the whole time thereof on a reasonably
accessible electronic network, and the information required to access such list
shall be provided with the notice of the meeting.. The stock ledger shall be the
only evidence as to who are the Stockholders entitled to examine the stock
ledger, the list of Stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of Stockholders.
1.9 Quorum of Stockholders; Adjournment. Except as otherwise provided by
any statute, the Certificate of Incorporation or these Bylaws, the holders of a
majority of all outstanding Shares of stock entitled to vote at any meeting of
Stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting. When a quorum is
once present to organize a meeting of Stockholders, it is not broken by the
subsequent withdrawal of any Stockholders. The holders of a majority of the
Shares present in person or represented by proxy at any meeting of Stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the Shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
1.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, and except as otherwise provided in Section 2.3 for the election
of Directors, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each full share and a
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fractional vote for each fractional share standing in his/her name on the record
of Stockholders determined in accordance with Section 1.5 hereof. If the
Certificate of Incorporation provides for more or less than one vote for any
Share on any matter, each reference in the Bylaws or the General Corporation Law
to a majority or other proportion of Shares shall refer to such majority or
other proportion of the votes of such Shares. The provisions of Sections 212 and
217 of the General Corporation Law shall apply in determining whether any Shares
may be voted and the persons, if any, entitled to vote such Shares; but the
Corporation shall be protected in assuming that the persons in whose names
Shares stand on the stock ledger of the Corporation are entitled to vote such
Shares. Holders of redeemable Shares or Shares subject to redemption are not
entitled to vote after the notice of redemption is mailed to such holders and a
sum sufficient to redeem the Shares has been deposited with a bank, trust
company, or other financial institution under an irrevocable obligation to pay
the holders the redemption price on surrender of the shares of stock. At any
meeting of Stockholders (at which a quorum was present to organize the meeting),
each matter, except as otherwise provided by statute or by the Certificate of
Incorporation or by these Bylaws, shall be decided by a majority of all the
votes cast with respect to such matter at such meeting by the holders of Shares
present in person or represented by proxy and entitled to vote thereon, whether
or not a quorum is present when the vote is taken. Voting need not be by written
ballot unless otherwise provided in the Certificate of Incorporation. In voting
on any other question on which a vote by ballot is required by law or is
demanded by any Stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the Stockholder voting or the Stockholder's proxy
and shall state the number of shares voted. On all other questions, the voting
may be viva voce. 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 such Stockholder by
proxy. The validity and enforceability of any proxy shall be determined in
accordance with Section 212 of the General Corporation Law. A Stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by delivering
a proxy in accordance with applicable law bearing a later date to the Secretary.
1.11 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. If the Corporation has a class of voting stock that is (i) listed
on a national securities exchange, (ii) authorized for quotation on an
interdealer quotation system of a registered national securities association or
(iii) held of record by more than 2,000 stockholders, the Board 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 Board may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate has been appointed or is able to act at a meeting,
the person presiding at the meeting shall appoint, and on the request of any
Stockholder entitled to vote thereat shall appoint, one or more inspectors to
act at the meeting. Each inspector, before entering upon the discharge of his or
her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall (a) ascertain the number of Shares outstanding and
the voting power of each, (b) determine the Shares represented at the meeting
and the validity of proxies and ballots, (c) count all votes ballots, (d)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (e) 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 their duties. Unless
otherwise provided by the Board, the date
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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 determined by the person
presiding at the meeting and shall be announced at the meeting. No ballot,
proxies or votes, or any revocation thereof or change thereto, shall be accepted
by the inspectors after the closing of the polls unless the Court of Chancery of
the State of Delaware upon application by a Stockholder shall determine
otherwise.
1.12 Organization. At each meeting of Stockholders, the Chairman, or in
the absence of the Chairman, the Chief Executive Officer, or in the absence of
the Chief Executive Officer, the President, or in the absence of the President,
a Vice President, and in case more than one Vice President shall be present,
that Vice President designated by the Board (or in the absence of any such
designation, the most senior Vice President, based on age, present), shall act
as chairman of the meeting. The Secretary, or in his or her absence, one of the
Assistant Secretaries, shall act as Secretary of the meeting. In case none of
the officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as the
case may be, shall be chosen by a majority of the votes cast at such meeting by
the holders of Shares present in person or represented by proxy and entitled to
vote at the meeting.
1.13 Advance Notice. At an annual meeting of the Stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting of the Stockholders,
business must be: (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (b) otherwise properly
brought before the meeting by or at the direction of the Board, or (c) otherwise
properly brought before the meeting by a Stockholder of the Corporation who was
a Stockholder of record at the time of giving of notice provided for in these
bylaws, who is entitled to vote at the annual meeting and who complies with the
notice procedures set forth in this Section 1.13. For business to be properly
brought before an annual meeting by a Stockholder, the Stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a Stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, not less than one hundred
twenty (120) calendar days prior to the date of such meeting (as set forth in
Section 1.2); provided however, that in the event that no annual meeting of
Stockholders was held in the previous year or the date of the annual meeting has
been changed by more than thirty (30) calendar days from the date contemplated
at the time of the previous year's proxy statement, notice by the Stockholder to
be timely must be so received not later than the close of business on the later
of one hundred twenty (120) calendar days in advance of such annual meeting or
ten (10) calendar days following the date on which public announcement of the
date of the meeting is first made. Such Stockholder's notice to the Secretary
shall set forth: (a) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
annual meeting and any material interest in such business of such Stockholder
and the beneficial owner (as such term is defined in Rule 13d-3 as then in
effect under the Securities Exchange Act of 1934, as amended (or any successor
thereto) (the "Exchange Act")), if any, on whose behalf the proposal is made;
(b) as to the Stockholder giving the notice and the beneficial owner, if any, on
whose behalf the proposal is made, the name and address of such Stockholder as
they appear on the Corporation's books, and of such beneficial owner; (c) a
representation that the Stockholder is a holder of record of shares of stock of
the Corporation entitled to vote with respect to such business and intends to
appear in person or by proxy at the meeting to move the consideration of such
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business; (d) the class and number of shares of the Corporation which are
beneficially owned (as such term is defined in Rule 13d-3 as then in effect
under the Exchange Act) and of record by such Stockholder and such beneficial
owner; and (e) a description of all arrangements or understandings between such
Stockholder and any other Person in connection with the proposal; and (f) all
other information with respect to each such matter as would have been required
to be included in a proxy statement filed pursuant to Regulation 14A as then in
effect under the Exchange Act, had proxies been solicited by the Board with
respect thereto. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 1.13. The presiding officer of an annual
meeting of Stockholders shall, if the facts warrant, have the power and duty to
determine whether the business proposed to be brought before the meeting was not
made in accordance with the provisions of this Section 1.13, and if he/she
should so determine, he/she shall have the power and duty to declare to the
meeting that such business not properly brought before the meeting shall be
disregarded and not transacted.
1.14 Compliance with Rule 14a-8. Notwithstanding the foregoing provisions
of Section 1.13 and Section 2.6, (a) if any class or series of stock has the
right, voting separately by class or series, to elect Directors at an annual or
special meeting of Stockholders, such Directors shall be nominated and elected
pursuant to the terms of such class or series of stock, and (b) a Stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in
Section 1.13 or Section 2.6. To the extent 1.13 shall be deemed by the Board or
the Securities and Exchange Commission, or adjudged by a court of competent
jurisdiction, to be inconsistent with the rights of Stockholders to request
inclusion of a proposal in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act, such rule shall prevail.
ARTICLE 2
DIRECTORS
2.1 General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board. The Board may adopt such rules
and regulations, not inconsistent with the Certificate of Incorporation or these
Bylaws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by these Bylaws, the Board may exercise all powers and perform all
acts that are not required, by these Bylaws or the Certificate of Incorporation
or by statute, to be exercised and performed by the Stockholders.
2.2 Number; Qualification; Term of Office. The Board shall consist of no
less than five and no more than fifteen members, as determined by the Board from
time to time. Directors need not be Stockholders of the Corporation. The
authorized number of Directors may be increased or decreased from time to time
by amendments to these Bylaws, provided, however, that the number of Directors
shall never be less than five, and, further, no such decrease shall have the
effect of shortening the term of any incumbent Director.
2.3 Classes. The members of the Entire Board, other than those who may be
elected by the holders of any Preferred Stock or series thereof, shall be
divided into three classes (to be designated as Class I, Class II and Class
III), with the term of office of one class expiring each
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year. Notwithstanding the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more Directors of the
Corporation, the terms of the Director or Directors elected by such holders
shall expire at the next succeeding annual meeting of Stockholders. Subject to
the foregoing, at each annual meeting of Stockholders, the successors to the
class of Directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting and until their
respective successors shall be elected and qualified or until their respective
earlier resignation or removal.
2.4 Vacancies and Newly Created Directorships. Except for Directorships
created pursuant to Section 6.3 of the Certificate of Incorporation relating to
the rights of holders of Preferred Stock or any series thereof, and except for
vacancies in such Directorships, any vacancies in the Board for any reason, and
any newly created Directorships resulting from any increase in the authorized
number of Directors, may be filled by a majority of the Directors then in
office, though less than quorum, or by a sole remaining Director, unless it is
otherwise provided in the Certificate of Incorporation or these Bylaws, and the
Directors so chosen shall hold office until the next election of the class for
which such Directors shall have been chosen and until their respective
successors are duly elected and qualified, or until their earlier resignation or
removal. No decrease in the number of Directors shall shorten the term of any
incumbent Director.
2.5 Removal of Directors. Notwithstanding any other provisions of these
Bylaws (and notwithstanding the fact that some lesser percentage may be
specified by law or these Bylaws), any Director or the Entire Board may be
removed at any time, but only for cause and only by the affirmative vote of the
holders of at least a majority or more of the Total Voting Power of the then
outstanding shares of Voting Stock, considered for this purpose as one class
(for purposes of this Section 2.5, each share of the Voting Stock shall have the
number of votes granted to it pursuant to the Corporation's Certificate of
Incorporation). For the purposes of this Section 2.5, (i) the term "Total Voting
Power" shall mean the aggregate of all votes of all outstanding shares of Voting
Stock; and (ii) the term "Voting Stock" shall mean the shares of all classes of
capital stock of the Corporation entitled to vote on removal of any Director or
the Entire Board in the manner provided in this Section 2.5 (except that if the
next succeeding sentence is operative, then the outstanding shares of Preferred
Stock shall not be considered "Voting Stock" for purposes of this Section 2.5).
Notwithstanding the foregoing, and except as otherwise required by law, whenever
the holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more Directors of the Corporation,
the foregoing provisions of this Section 2.5 shall not apply with respect to the
Director or Directors elected by such holders of Preferred Stock. As used in
these Bylaws, the term "for cause" is hereby exclusively defined and limited to
mean conviction of a felony by a court of competent jurisdiction where such
conviction is no longer subject to direct appeal, or an adjudication by a court
of competent jurisdiction of liability for negligence, or misconduct, in the
performance of the Director's duty to the Corporation in a matter of substantial
importance to the Corporation, where such adjudication is no longer subject to
direct appeal.
2.6 Notification of Nominations. Subject to the rights of holders of
Preferred Stock, nominations for the election of Directors may be made by the
Board or a committee appointed by the Board granted such power or authority, or
by any Stockholder entitled to generally vote in
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the election of Directors at the meeting of the Stockholders at which Directors
will be elected. However, any such Stockholder may nominate one or more persons
for election as Directors at a meeting only if written notice of such
Stockholder's intent to make such nomination or nominations has been given,
either by personal delivery or by certified or registered mail, return receipt
requested, to the Secretary of the Corporation not later than (i) with respect
to an election to be held at an annual meeting of Stockholders, one hundred
twenty (120) calendar days in advance of the date of such meeting (as set forth
in Section 1.2 of these Bylaws), and (ii) with respect to an election to be held
at a special meeting of Stockholders for the election of Directors, the close of
business on the tenth (10th) day following the date on which public announcement
of the date of such meeting is first made. In no event shall the public
announcement of an adjournment of any annual or special meeting commence a new
time period for giving of a stockholder notice as described above. Each such
notice shall set forth: (a) the name, age and address (both business and
residential) of the Stockholder who intends to make the nomination and of the
person or persons to be nominated, and the principal employment of the person or
persons to be nominated; (b) a representation that the Stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) the class and number of shares of the
Corporation which are beneficially owned (as defined in Rule 13d-3 as then in
effect under the Exchange Act) by the nominating Stockholder and each nominee
proposed by such Stockholder; (d) a description of all agreements, arrangements
or understandings between the nominating Stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the Stockholder; (e) such other
information regarding each nominee proposed by such Stockholder as would have
been required to be included in a proxy statement filed pursuant to Regulation
14A (17 CFR 240.14a-1 et seq.) as then in effect under the Exchange Act, as
amended, had the nominee been nominated, or intended to be nominated, by the
Board; and (f) the written consent of each nominee to serve as a Director of the
Corporation if so elected. At the request of the Board any person nominated by
the Board for election as a Director shall furnish to the Secretary that
information required to be set forth in a Stockholder's notice of nomination
which pertains to the nominee. The Corporation may require any proposed nominee
to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as a
director of the Corporation. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
2.7 Resignation. Any Director may resign at any time by written notice to
the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified in such resignation, the acceptance
of such resignation shall not be necessary to make it effective.
2.8 Compensation. Each Director, in consideration of his or her service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at Directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable
out-of-pocket expenses, if any, incurred by such Director in connection with the
performance of his or her duties. Each Director who shall serve as a member of
any committee of Directors in consideration of serving as such shall be entitled
to such additional amount per annum or such fees for attendance at committee
meetings, or both, as the
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Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in the
performance of his or her duties. Nothing contained in this Section 2.8 shall
preclude any Director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation therefor.
2.9 Times and Places of Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. The times
and places for holding meetings of the Board may be fixed from time to time by
resolution of the Board or (unless contrary to a resolution of the Board) in the
notice of the meeting.
2.10 Annual Meetings. On the day when and at the place where the annual
meeting of Stockholders for the election of Directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purpose of organization, the election of officers,
establishment of committees and the transaction of other business. The annual
meeting of the Board may be held at any other time and place specified in a
notice given as provided in Section 2.12 hereof for special meetings of the
Board or in a waiver of notice thereof.
2.11 Regular Meetings. Regular meetings of the Board may be held without
notice at such times and at such places as shall from time to time be determined
by the Board.
2.12 Special Meetings. Special meetings of the Board may be called by the
Chairman, the Chief Executive Officer or the Secretary or by any two or more
Directors then serving on at least 24 hours' notice to each Director given by
one of the means specified in Section 2.15 hereof other than by mail, or on at
least three business days' notice if given by mail. Special meetings shall be
called by the Chairman, the Chief Executive Officer or the Secretary in like
manner and on like notice on the written request of any two or more of the
Directors then serving.
2.13 Telephone Meetings. Directors or members of any committee designated
by the Board may participate in a meeting of the Board or of such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 2.13 shall constitute
presence in person at such meeting.
2.14 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least one day's
notice of any adjourned meeting of the Board shall be given to each Director,
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 2.15 hereof other than by mail,
or at least three business days' notice if by mail. Any business may be
transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
2.15 Notice Procedure. Subject to Sections 2.12 and 2.18 hereof, whenever,
under the provisions of any statute, the Certificate of Incorporation or these
Bylaws, notice is required to be given to any Director, such notice shall be
deemed given effectively if given in person or by telephone, by mail addressed
to such Director at such Director's address as it appears on the
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records of the Corporation, with postage thereon prepaid, or by telegram, telex,
email, telecopy or similar means addressed as aforesaid.
2.16 Waiver of Notice. Whenever the giving of any notice is required by
statute, the Certificate of Incorporation or these Bylaws, a waiver thereof, in
writing, signed by the person or persons entitled to said notice and delivered
to the Corporation for inclusion in the minutes or filing with the corporate
records, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance by a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Directors or a committee of
Directors need be specified in any written waiver of notice unless so required
by statute, the Certificate of Incorporation or these Bylaws.
2.17 Organization. At each meeting of the Board, the Chairman, or in the
absence of the Chairman, the Chief Executive Officer, or in the absence of the
Chief Executive Officer, a chairman chosen by a majority of the Directors
present, shall preside. The Secretary shall act as secretary at each meeting of
the Board. In case the Secretary shall be absent from any meeting of the Board,
an Assistant Secretary shall perform the duties of secretary at such meeting;
and in the absence from any such meeting of the Secretary and all Assistant
Secretaries, the person presiding at the meeting may appoint any person to act
as secretary of the meeting.
2.18 Quorum of Directors. The presence, in person or by telephone, of a
majority of the Entire Board shall constitute a quorum for the transaction of
business at any meeting of the Board, but a majority of a smaller number may
adjourn any such meeting to a later date.
2.19 Action by Majority Vote. Except as otherwise expressly required by
statute, the Certificate of Incorporation or these Bylaws, the act of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board.
2.20 Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing (which may be in counterparts), or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or
committee. Such filing shall be made in paper form if the minutes of the
Corporation are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
2.21 Reliance upon Records. Every Director, and every member of any
committee of the Board, shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the records of the Corporation and upon
such information, opinions, reports or statements presented to the Corporation
by any of its officers or employees, or committees of the Board, or by any other
person as to matters the Director or member reasonably believes are within such
other person's professional or expert competence and who has been selected with
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reasonable care by or on behalf of the Corporation, including, but not limited
to such records, information, opinions, reports or statements as to the value
and amount of the assets, liabilities and/or net profits of the Corporation, or
any other facts pertinent to the existence and amount of surplus or other funds
from which dividends might properly be declared and paid, or with which the
Corporation's capital stock might properly be purchased or redeemed.
2.22 Interested Directors. A Director who is directly or indirectly a
party to a contract or transaction with the Corporation, or is a Director or
officer of or has a financial interest in any other corporation, partnership,
association or other organization which is a party to a contract or transaction
with the Corporation, may be counted in determining whether a quorum is present
at any meeting of the Board or a committee thereof at which such contract or
transaction is considered or authorized, and such Director may participate in
such meeting and vote on such authorization to the extent permitted by
applicable law, including Section 144 of the General Corporation Law of the
State of Delaware.
ARTICLE 3
COMMITTEES OF THE BOARD
3.1 Appointment. The Board may designate one or more committees, each
committee to consist of two or more of the Directors of the Corporation. Unless
the Board otherwise provides, each committee designated by the Board may make,
alter and repeal rules for the conduct of its business. In the absence of such
rules each committee shall conduct its business in the same manner as the Board
conducts its business pursuant to this Article 3 of these Bylaws.
3.2 Voting Procedure. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by a unanimous vote, appoint another member of the
Board to act at the meeting in the place of any such absent or disqualified
member.
3.3 Actions. Any such committee, to the extent authorized by law and
provided in the resolution of the Board passed as provided in Section 3.1
hereof, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be impressed on all papers that may require it,
but no such committee shall have any power or authority greater than that
permitted by the General Corporation Law of the State of Delaware.
3.4 Quorum. Unless otherwise specified in the resolution of the Board
designating a committee or in these Bylaws, at all meetings of such committee a
majority of the total number of members of the committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members of the committee present at any meeting at which there is a quorum shall
be the act of the committee.
3.5 Procedures. Each committee shall keep regular minutes of its meetings.
Unless the Board otherwise provides, each committee designated by the Board may
make, alter and repeal rules for the conduct of its business. In the absence of
such rules each committee shall
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conduct its business in the same manner as the Board conducts its business
pursuant to Article 2 of these Bylaws.
ARTICLE 4
OFFICERS
4.1 Positions. The officers of the Corporation shall be a Chief Executive
Officer, a President, a Secretary, a Treasurer and such other officers as the
Board may appoint, one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, who shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Board may
designate one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any number
of offices may be held by the same person unless the Certificate of
Incorporation or these Bylaws otherwise provide.
4.2 Appointment. The officers of the Corporation shall be chosen by the
Board at its annual meeting or at such other time or times as the Board shall
determine.
4.3 Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board. No officer shall be prevented from receiving a
salary or other compensation by reason of the fact that the officer also is a
Director.
4.4 Term of Office. Each officer of the Corporation shall hold office for
the term for which he or she is elected and until such officer's successor is
chosen and qualifies or until such officer's earlier death, resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the date of receipt of such
notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer elected or appointed by
the Board may be removed at any time, with or without cause, by vote of a
majority of the Entire Board. Any vacancy occurring in any office of the
Corporation shall be filled by the Board. The removal of an officer without
cause shall be without prejudice to the officer's contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights.
4.5 Fidelity Bonds. The Corporation may secure the fidelity of any or all
of its officers or agents by bond or otherwise.
4.6 Chief Executive Officer. The Chief Executive Officer of the
Corporation shall have general supervision over the business of the Corporation,
subject, however, to the control of the Board and any duly authorized committee
of Directors. The Chief Executive Officer shall preside at all meetings of the
Stockholders and at all meetings of the Board at which the Chairman of the Board
(if there be one) is not present. The Chief Executive Officer may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments except in cases in which the signing and execution thereof
shall be expressly delegated by the Board or by these Bylaws to some other
officer or agent of the Corporation or shall be required by statute otherwise to
be signed or executed and, in general, the Chief Executive Officer shall
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perform all duties incident to the office of Chief Executive Officer of a
corporation and such other duties as may from time to time be assigned to the
Chief Executive Officer by the Board.
4.7 President. At the request of the Board, the President shall perform
all duties of the President and, in so performing, shall have the power of, and
be subject to all restrictions upon, the President. The President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments which the Board or a committee thereof has authorized to be
executed, except in cases in which the signing and execution thereof shall be
expressly delegated by the Board or by these Bylaws to some other officer or
agent of the Corporation, or shall be required by statute otherwise to be signed
or executed, and, in general, the President shall perform all duties as from
time to time may be assigned to the President by the Board or the Chief
Executive Officer.
4.8 Vice Presidents. At the request of the President, or, in the
President's absence, at the request of the Board, the Vice Presidents shall (in
such order as may be designated by the Board, or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so performing, shall have all the powers of, and be
subject to all restrictions upon, the President. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, which the Board or a committee thereof has authorized to be
executed, except in cases in which the signing and execution thereof shall be
expressly delegated by the Board or by these Bylaws to some other officer or
agent of the Corporation, or shall be required by statute otherwise to be signed
or executed, and each Vice President shall perform such other duties as from
time to time may be assigned to such Vice President by the Board, the Chief
Executive Officer or the President.
4.9 Secretary. The Secretary shall attend all meetings of the Board and of
the Stockholders and shall record all the proceedings of the meetings of the
Board and of the Stockholders in a book to be kept for that purpose, and shall
perform like duties for committees of the Board, when required. The Secretary
shall give, or cause to be given, notice of all meetings of the Board and of the
Stockholders in accordance with these Bylaws and shall perform such other duties
as may be prescribed by the Board or the Chief Executive Officer, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant Secretary,
shall have authority to impress the same on any instrument requiring it, and
when so impressed the seal may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board may give general
authority to any other officer to impress the seal of the Corporation and to
attest the same by such officer's signature. The Secretary or an Assistant
Secretary may also attest all instruments signed by the Chief Executive Officer,
the President or any Vice President. The Secretary shall have charge of all the
books, records and papers of the Corporation relating to its organization and
management, shall see that the reports, statements and other documents required
by statute are properly kept and filed and, in general, shall perform all duties
incident to the office of Secretary of a corporation and such other duties as
may from time to time be assigned to the Secretary by the Board or the Chief
Executive Officer.
4.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable
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effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board; against proper vouchers, cause such funds to be
disbursed by checks or drafts on the authorized depositories of the Corporation
signed in such manner as shall be determined by the Board and be responsible for
the accuracy of the amounts of all moneys so disbursed; regularly enter or cause
to be entered in books or other records maintained for the purpose full and
adequate account of all moneys received or paid for the account of the
Corporation; have the right to require from time to time reports or statements
giving such information as the Treasurer may desire with respect to any and all
financial transactions of the Corporation from the officers or agents
transacting the same; render to the Chief Executive Officer or the Board,
whenever the Chief Executive Officer or the Board shall require the Treasurer so
to do, an account of the financial condition of the Corporation and of all
financial transactions of the Corporation; exhibit at all reasonable times the
records and books of account to any of the Directors upon application at the
office of the Corporation where such records and books are kept; disburse the
funds of the Corporation as ordered by the Board; and, in general, perform all
duties incident to the office of Treasurer of a corporation and such other
duties as may from time to time be assigned to the Treasurer by the Board or the
Chief Executive Officer.
4.11 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries
and Assistant Treasurers shall perform such duties as shall be assigned to them
by the Secretary or by the Treasurer, respectively, or by the Board or the Chief
Executive Officer.
ARTICLE 5
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 Execution of Contracts. The Board, except as otherwise provided in
these Bylaws, may prospectively or retroactively authorize any officer or
officers, employee or employees or agent or agents, in the name and on behalf of
the Corporation, to enter into any contract or execute and deliver any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
5.2 Loans. The Board may prospectively or retroactively authorize the
Chief Executive Officer or any other officer, employee or agent of the
Corporation to effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and, when authorized by the Board so to do,
may pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority conferred
by the Board may be general or confined to specific instances, or otherwise
limited.
5.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
5.4 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation with such banks,
trust companies, investment
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banking firms, financial institutions or other depositories as the Board may
select or as may be selected by an officer, employee or agent of the Corporation
to whom such power to select may from time to time be delegated by the Board.
ARTICLE 6
STOCK AND DIVIDENDS
6.1 Certificates Representing Shares. The Shares of the Corporation shall
be represented by certificates in such form (consistent with the provisions of
Section 158 of the General Corporation Law) as shall be approved by the Board.
Such certificates shall be signed by the Chief Executive Officer, the President
or a Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, and may be impressed with the seal of the
Corporation or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles, if the certificate is countersigned by a transfer
agent or registrar other than the corporation itself or its employee. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the Board, be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
6.2 Transfer of Shares. Transfers of Shares of the Corporation shall be
made only on the books of the Corporation by the holder thereof or by the
holder's duly authorized attorney appointed by a power of attorney duly executed
and filed with the Secretary or a transfer agent of the Corporation, and on
surrender of the certificate or certificates representing such Shares properly
endorsed for transfer or accompanied by proper evidence of succession,
assignment or authority to transfer or, if the relevant stock certificate is
claimed to have been lost, stolen or destroyed, upon compliance with Section 6.4
of these Bylaws, and upon payment of all necessary transfer taxes. Every
certificate exchanged, returned or surrendered to the Corporation shall be
marked "Cancelled," with the date of cancellation, by the Secretary or an
Assistant Secretary or the transfer agent of the Corporation. A person in whose
name Shares shall stand on the books of the Corporation shall be deemed the
owner thereof to receive dividends, to vote as such owner and for all other
purposes as respects the Corporation. No transfer of Shares shall be valid as
against the Corporation, its Stockholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until such transfer shall have been entered on the books of the
Corporation by an entry showing from and to whom transferred.
6.3 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
6.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any
Shares of the Corporation shall immediately notify the Corporation of any loss,
destruction, theft or mutilation of the certificate representing such Shares,
and the Corporation may issue a new certificate to replace the certificate
alleged to have been lost, destroyed, stolen or mutilated. The Board may, in its
discretion, as a condition to the issue of any such new certificate, require the
owner of the lost, destroyed, stolen or mutilated certificate, or his or her
legal representatives, to
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make proof satisfactory to the Board of such loss, destruction, theft or
mutilation and to advertise such fact in such manner as the Board may require,
and to give the Corporation and its transfer agents and registrars, or such of
them as the Board may require, a bond in such form, in such sums and with such
surety or sureties as the Board may direct, to indemnify the Corporation and its
transfer agents and registrars against any claim that may be made against any of
them on account of the continued existence of any such certificate so alleged to
have been lost, destroyed, stolen or mutilated and against any expense in
connection with such claim.
6.5 Rules and Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws or with the
Certificate of Incorporation, concerning the issue, transfer and registration of
certificates representing Shares.
6.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of Shares of the Corporation, if permitted
by Section 202 of the General Corporation Law and noted conspicuously on the
certificate representing such capital stock, may be enforced against the holder
of the restricted Shares or any successor or transferee of the holder, including
an executor, administrator, trustee, guardian or other fiduciary entrusted with
like responsibility for the person or estate of the holder. A restriction on the
transfer of Shares of the Corporation may be imposed either by the Certificate
of Incorporation or by an agreement among any number of Stockholders or among
such Stockholders and the Corporation.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnity Undertaking. To the extent not prohibited by law, the
Corporation shall indemnify and hold harmless any person who is or was made, or
threatened to be made, a party to any threatened, pending or completed action
suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a Director, officer or employee of the Corporation, or at the request of the
Corporation, is or was serving as a director, officer or employee of any other
corporation or in a capacity with comparable authority or responsibilities for
any partnership, joint venture, trust, employee benefit plan or other enterprise
(an ("Other Entity"), against any and all liability and loss, including for any
other Person, against judgments, fines, penalties, excise taxes, amounts paid in
settlement and costs, charges and expenses reasonably incurred (including
attorneys' fees and disbursements). Persons who are not Directors or officers of
the Corporation (or otherwise entitled to indemnification pursuant to the
preceding sentence) may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board of Directors at any time specifies that such persons are
entitled to the benefits of this Article 7. The Corporation shall not be
required to indemnify a person in connection with a Proceeding initiated by such
person, including a counterclaim or crossclaim, unless the Proceeding was
authorized by the Board of Directors. For purposes of this Article 7, any
reference to "other enterprise" shall include all plans, programs, policies,
agreements, contracts and payroll practices and related trusts for the benefit
of or relating to employees of the Corporation and its related entities.
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7.2 Reimbursement. The Corporation shall, from time to time, reimburse or
advance to any Director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys' fees
and disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that, if permitted by
the Delaware General Corporation Law, such expenses incurred by or on behalf of
any Director, officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
7.3 Other Indemnification Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 7 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, the Certificate of
Incorporation, these Bylaws, any agreement, any vote of Stockholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
7.4 Continuation of Benefits. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 7 shall continue as to a person who has ceased to be a Director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the executors, administrators, legatees and distributees of such person.
7.5 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article 7, the Certificate of
Incorporation or under the General Corporation Law or any other provision of
law.
7.6 Coverage. No repeal or modification of this Article 7 shall adversely
affect any rights or obligations with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
7.7 Enforcement. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 7
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The burden of proving that such indemnification or reimbursement or advancement
of expenses is not appropriate shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, its independent legal
counsel and its Stockholders) to have made a determination prior to the
commencement of such action that such
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indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel and its Stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
7.8 Service Deemed at Corporation's Request. Any Director or officer of
the Corporation serving in any capacity (i) another corporation of which a
majority of the shares entitled to vote in the election of its Directors is
held, directly or indirectly, by the Corporation or (ii) any employee benefit
plan of the Corporation or any corporation referred to in clause (i) shall be
deemed to be doing so at the request of the Corporation.
ARTICLE 8
BOOKS AND RECORDS
8.1 Books and Records. There shall be kept at the principal office of the
Corporation correct and complete records and books of account recording the
financial transactions of the Corporation and minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
Stockholders, the number and class of Shares held by each and the dates when
they respectively became the owners of record thereof.
8.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of magnetic tape, punch
cards, photographs, microphotographs, electronic format or any other information
storage device, provided that the records so kept can be converted into clearly
legible written form within a reasonable time. The Corporation shall so convert
any records so kept upon the request of any person entitled to inspect the same.
8.3 Inspection of Books and Records. Except as otherwise provided by law,
the Board shall determine from time to time whether, and, if allowed, when and
under what conditions and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the Stockholders
for inspection.
ARTICLE 9
SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
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ARTICLE 10
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and may be changed, by
resolution of the Board.
ARTICLE 11
PROXIES AND CONSENTS
Unless otherwise directed by the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer, or any one of
them, may execute and deliver on behalf of the Corporation proxies respecting
any and all shares or other ownership interests of any Other Entity owned by the
Corporation appointing such person or persons as the officer executing the same
shall deem proper to represent and vote the shares or other ownership interests
so owned at any and all meetings of holders of shares or other ownership
interests, whether general or special, and/or to execute and deliver consents
respecting such shares or other ownership interests; or any of the aforesaid
officers may attend any meeting of the holders of shares or other ownership
interests of such Other Entity and thereat vote or exercise any or all other
powers of the Corporation as the holder of such shares or other ownership
interests.
ARTICLE 12
EMERGENCY BYLAWS
Unless the Certificate of Incorporation provides otherwise, the following
provisions of this Article 12 shall be effective during an emergency, which is
defined as when a quorum of the Corporation's Directors cannot be readily
assembled because of some catastrophic event. During such emergency:
12.1 Notice to Board Members. Any one member of the Board or any one of
the following officers: Chief Executive Officer, President, any Vice President,
Secretary, or Treasurer, may call a meeting of the Board. Notice of such meeting
need be given only to those Directors whom it is practicable to reach, and may
be given in any practical manner, including by publication and radio. Such
notice shall be given at least six hours prior to commencement of the meeting.
12.2 Temporary Directors and Quorum. One or more officers of the
Corporation present at the emergency Board meeting, as is necessary to achieve a
quorum, shall be considered to be Directors for the meeting, and shall so serve
in order of rank, and within the same rank, in order of seniority. In the event
that less than a quorum of the Directors are present (including any officers who
are to serve as Directors for the meeting), those Directors present (including
the officers serving as Directors) shall constitute a quorum.
12.3 Actions Permitted To Be Taken. The Board as constituted in Section
12.2, and after notice as set forth in Section 12.1 may:
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12.3.1 prescribe emergency powers to any officer of the Corporation;
12.3.2 delegate to any officer or Director, any of the powers of the
Board;
12.3.3 designate lines of succession of officers and agents, in the
event that any of them are unable to discharge their duties;
12.3.4 relocate the principal place of business, or designate
successive or simultaneous principal places of business; and
12.3.5 take any other convenient, helpful or necessary action to
carry on the business of the Corporation.
ARTICLE 13
AMENDMENTS
These Bylaws may be amended or repealed and new Bylaws may be adopted by a
vote of the holders of a majority of the Common Stock or by the Board. Any
Bylaws adopted or amended by the Board may be amended or repealed by the
Stockholders entitled to vote thereon.
ARTICLE 14
DEFINITIONS
As used in these Bylaws, unless the context otherwise requires, the term:
14.1 "Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with such
Person. For the purposes of this definition, "control," when used with respect
to any Person, shall mean the power to direct the management and policies of
such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
14.2 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
14.3 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
14.4 "Board" means the Board of Directors of the Corporation.
14.5 "Business Day" means any day other than a Saturday, Sunday, or a day
when banks in New York City are authorized or required by law to be closed.
14.6 "Bylaws" means the initial bylaws of the Corporation, as amended
from time to time.
14.7 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
14.8 "Chairman" means the Chairman of the Board of the Corporation.
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14.9 "Chief Executive Officer" means the Chief Executive Officer of the
Corporation.
14.10 "Common Stock" means the Common Stock of the Corporation.
14.11 "Corporation" means Premium Standard Farms, Inc.
14.12 "Directors" means directors of the Corporation.
14.13 "Entire Board" means all Directors of the Corporation in office,
whether or not present at a meeting of the Board, but disregarding vacancies.
14.14 "Exchange Act" shall have the meaning ascribed thereto in Section
11.3.
14.15 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
14.16 "Other Entity" shall have the meaning ascribed thereto in Section
7.1.
14.17 "President" means the President of the Corporation.
14.18 "Proceeding" shall have the meaning ascribed thereto in Section 7.1.
14.19 "Secretary" means the Secretary of the Corporation.
14.20 "Shares" means (a) all classes of stock designated in the
Certificate of Incorporation as the Common Stock, or (b) any other class of
stock resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value.
14.21 "Stockholders" means all stockholders of the Corporation,
collectively.
14.22 "Treasurer" means the Treasurer of the Corporation.
14.23 "Vice President" means a Vice President of the Corporation.
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