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EXHIBIT 3(b)
IN EFFECT JANUARY 26, 1996
BY-LAWS
OF
DEAN FOODS COMPANY
ARTICLE I
OFFICES
Section l. Registered Office. The registered office of the
corporation required by The General Corporation Law of the State of
AMENDED Delaware shall be established and maintained at the office of The
10/3/86 Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, State of Delaware, and the address of the registered
office may be changed from time to time by the Board of Directors.
Section 2. Principal Office. The principal office of the
corporation shall be located at 3600 North River Road, Franklin
Park, Illinois. The corporation may have such other offices, either
within or without the State of Delaware, as the business of the
corporation may require from time to time.
ARTICLE II
STOCKHOLDERS
Section l. Annual Meeting. Commencing with the year l987, the
annual meeting of stockholders for the election of directors and for
the transaction of such other business as may be properly brought
AMENDED before the meeting shall be held at such place, either within or
5/23/86 without the State of Delaware, and at such time and date as the
Board of Directors, by resolution, shall determine and as set forth
in the notice of the meeting. In the event the Board of Directors
fails to so determine the time, date, and place of meeting prior to
the first day of September in any year, or the record date for
determining stockholders entitled to notice of or to vote at said
meeting, whichever be the earlier date, the annual meeting of
stockholders shall be held at the principal office of the
corporation on the last Monday in September of each calendar year,
unless such date is a legal holiday, in which event such meeting
shall be held on the next succeeding business day.
Section 2. Special Meeting. Special meetings of the
stockholders may be called by the Chairman of the Board or the
AMENDED President and shall be called by the Secretary at the written
5/31/85 request (meeting the requirements set forth in the Certificate of
Incorporation) of either a majority of the Board of Directors, or
the holders of at least 80% of the outstanding shares of Common
Stock of the corporation. Such special meetings may be held at such
time and place, within or without the State of Delaware, and for
such purpose or purposes as shall be stated in the notice of the
meeting.
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Section 3. Notice of Meetings. Except as otherwise provided
by statute, written or printed notice stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not
less than ten days nor more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of the
Secretary, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail in a sealed envelope
addressed to the stockholder at his last known post office address
as it appears on the stock record books of the corporation, with
postage thereon prepaid. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken, unless the adjournment is for more than thirty
days or a new record date is fixed for the adjourned meeting.
Section 4. Record Dates. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders at any adjournment thereof or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, or more than sixty days prior
to any other action. If no record date is fixed:
(a) The record date for determining
stockholders entitled to notice of or to vote at a
meeting of stockholders shall be the close of
business on the day next preceding the day on
which notice is given,
(b) The record date for determining
stockholders for any other purpose shall be the
close of business on the day on which the Board of
Directors adopts the resolution or resolutions
relating thereto.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting. In no event shall
the stock transfer books of the corporation be closed.
Section 5. List of Voting Stockholders. The officer who has
charge of the stock ledger of the corporation shall prepare and
make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of and the
number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for
a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held, and the
list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 6. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except
as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders
entitled to vote thereat present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall
be present or represented. At such adjourned meeting at which a
quorum shall be present or represented by proxy any business may be
transacted which might have been transacted at the meeting as
originally notified.
Section 7. Voting. Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation, of
the resolution or resolutions of the Board of Directors setting
forth the voting powers, if any, of the holders of any series of
Preferred Stock, or of these By-Laws shall be entitled to one vote,
in person or by proxy, for each share of stock entitled to vote held
by such stockholder, but no proxy shall be voted after three years
from its date unless such proxy provides for a longer period. All
elections or directors shall be decided by plurality vote; all other
questions shall be decided by majority vote except as otherwise
provided by the Certificate of Incorporation, by the resolution or
resolutions of the Board of Directors setting forth the voting
rights, if any, of the holders of any series of Preferred Stock, or
by the laws of the State of Delaware.
Section 8. Voting of Shares by Certain Holders.
(a) Shares standing in the name of another
corporation, domestic or foreign, may be voted by
such officers, agent or proxy as the By-Laws of
such corporation may prescribe, or, in the absence
of such provision, as the Board of Directors of
such corporation may determine.
(b) Shares standing in the name of a
deceased person may be voted by his administrator
or his executor either in person or by proxy, but
no guardian, conservator or trustee shall be
entitled, as such fiduciary, to vote shares held
by him without a transfer of such shares into his
name.
(c) Shares standing in the name of a
receiver may be voted by such receiver, and shares
held by or under the control of a receiver may be
voted by such receiver without the transfer
thereof into his name, if authority so to do be
contained in an appropriate order of the court by
which such receiver was appointed, and a certified
copy of such order is filed with the Secretary of
the corporation before or at the time of the
meeting.
(d) A stockholder whose shares are pledged
shall be entitled to vote such shares unless in
the transfer by the pledgor on the books of the
corporation he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee or
his proxy may represent such stock and vote
thereon.
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(e) If shares or other securities having
voting power stand in names of two or more
persons, or if two or more persons have the same
fiduciary relationship respecting the same shares,
unless the Secretary of the corporation is given
written notice to the contrary and is furnished
with a copy of the instrument or order appointing
them or creating the relationship wherein it is so
provided, their acts with respect to voting shall
have the following effect:
(l) The act of the majority voting
binds all;
(2) In all other cases, the effect
provided by the laws of the State
of Delaware.
(f) Shares of the corporation belonging to
it shall not be voted, directly or indirectly, at
any meeting, and shall not be counted in
determining the total number of outstanding shares
at any given time, but shares of the corporation
held by it in a fiduciary capacity may be voted
and shall be counted in determining the number of
outstanding shares at any given time.
Section 9. Proxies. At all meetings of stockholders, a
stockholder may vote in person or by written proxy filed with the
Secretary of the corporation before or at the time of the meeting.
To revoke his proxy as to any matter before the meeting, a
stockholder must deliver written notice to that effect to the
Secretary before that matter is submitted to a vote of the
stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section l. General Powers and Duties. The property, business
and affairs of the corporation shall be managed by its Board of
Directors.
Section 2. Number and Qualification. The Board of Directors
shall be divided into three classes. Class One shall consist of
four directors whose term of office shall expire at the Annual
Meeting of Stockholders to be held in l996, Class Two shall consist
of four directors whose term of office shall expire at the Annual
AMENDED Meeting of Stockholders to be held in l997 and Class Three shall
01/26/96 consist of four directors whose term of office shall expire at
the Annual Meeting of Stockholders to be held in l998. At each
Annual Meeting after the l995 Annual Meeting of Stockholders,
successors to the class of directors whose term then expires shall
be elected for a three-year term.
Section 3. Resignations. Any director, member of a committee
or other officer may resign at any time. Such resignation shall be
made in writing and shall take effect at the time specified therein
or, if no time be specified, at the time of its receipt by the
President or Secretary of the corporation. The acceptance of a
resignation shall not be necessary to make it effective.
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Section 4. Vacancies. If the office of any director, member
of a committee or other officer becomes vacant, the remaining
directors in office, though less than a quorum, by majority vote may
appoint any qualified person to fill such vacancy, which person
shall hold office the unexpired term and until his successor shall
be duly chosen.
Section 5. Increase or Decrease of Number. The number of
directors may be increased or decreased by amendment of these
AMENDED By-Laws by the affirmative vote of a majority of the directors,
1/26/96 though less than a quorum, and by like vote the additional directors
may be chosen to hold office until the next annual election and
until their successors are elected and qualified.
Section 6. Regular Meetings. The regular annual meeting of
the Board of Directors shall be held without other notice than this
By-Law as promptly as possible after the annual meeting of
stockholders in each year. The place of such meeting shall be the
same as that of the annual meeting of stockholders immediately
preceding. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Delaware, for
the holding of additional regular meetings without notice other than
such resolution.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be held at any time on the call of the Chairman of the
Board or of the President and shall be called by the Chairman of the
AMENDED the President at the request in writing of any five (5) directors.
5/13/85 Special meetings of the Board of Directors may be held at such
place, either within or without the State of Delaware, as shall be
specified or fixed in the call for such meeting or notice thereof.
Section 8. Notice of Special Meetings. Notice of each
special meeting shall be mailed by or at the direction of the
Secretary to each director addressed to him at his residence or
usual place of business at least three days before the day on which
the meeting is to be held, or shall be sent to him by telegram, or
be delivered personally, at least two days before the day on which
the meeting is to be held. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail in a sealed
envelope so addressed, with postage thereon prepaid. If notice be
given by telegraph, such notice shall be deemed to be delivered when
the same is delivered to the telegraph company. Notice may be
waived in writing by any director, either before or after the
meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 9. Quorum. A majority of the total number of
directors as at the time specified by the By-Laws shall constitute a
quorum for the transaction of business at any meeting of the Board
of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a
quorum be had, and without other notice than by announcement at the
meeting at which the adjournment has been taken.
Section l0. Manner of Acting. Except as otherwise provided by
statute, by the Certificate of Incorporation, as amended, or these
By-Laws, the act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board
of Directors.
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Section ll. Compensation. Directors shall receive such annual
fee or meeting fee for their services as shall be established by
resolution of the Board of Directors plus expenses of attendance at
Board and Committee meetings, if any. The Board may also authorize
the payment of a fee for the attendance of any director at meetings
of Committees of the Board. Nothing herein contained shall be
construed to preclude any director from serving the corporation in
any other capacity and receiving his regular compensation therefor.
Section l2. Executive Committee. An Executive Committee
AMENDED consisting of four members of the Board of Directors may be elected
10/2/87 by the Board of Directors. A chairman of said committee shall be
elected by the Board of Directors from among the members of the
Executive Committee. Each director serving on the Executive
Committee shall hold office until the Annual Meeting held next after
his election and until his successor shall have been elected or
qualified. If an Executive Committee is elected, it shall, during
the intervals between the meetings of the Board of Directors, and so
far as it lawfully may, possess and exercise all of the authority of
the Board of Directors in the management of the business of the
corporation, in all cases in which specific directions shall not
AMENDED have been given by the Board of Directors, provided that
10/30/69 notwithstanding the foregoing, the Executive Committee shall not
have authority:
(l) To take any action to amend the Certificate of
Incorporation;
(2) To adopt a plan of merger or plan of consolidation
with another corporation or corporations;
(3) To recommend to the stockholders the sale, lease,
exchange, mortgage, pledge or other disposition
of all or substantially all of the property and
assets of the corporation if not made in the usual
and regular course of its business;
(4) To recommend to the stockholders a voluntary
dissolution of the corporation or a revocation
thereof;
(5) To amend, alter or repeal the By-Laws of the
corporation;
(6) To elect or remove officers of the corporation
or members of the Executive Committee;
(7) To fix the compensation of any member of the
Executive Committee;
(8) To declare dividends;
(9) To amend, alter or repeal any resolution of the
Board of Directors which by its terms provides
that it shall not be amended, altered or repealed
by the Executive Committee.
The Executive Committee shall keep minutes of the proceeding of
their meetings which shall be submitted to the Board of Directors at
the next meeting of the Board if the Board shall so request. Three
members of the Committee shall constitute a quorum for the
transaction of business, provided that if any member or members
thereof are absent from a meeting or disqualified from membership on
the Committee, the remaining member or members thereof present at
any meeting and not disqualified from voting (whether or not he or
they would otherwise constitute a quorum) may unanimously appoint
another member of the Board of Directors to act at the meeting in
place of any such absent or disqualified member.
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Meetings of the Executive Committee shall be called upon the request
of any member of the Executive Committee and notice of such meetings
shall in each instance be given to each member of the Committee at
least twenty-four hours before the meeting either orally or in
writing. A fixed sum and expenses of attendance, if any, may be
allowed and paid for attendance at each meeting of the Executive
Committee, the amount of such sum to be designated by the Board of
Directors.
Section l3. Presumption of Assent. A director of the
corporation who is present at a meeting of the Board of Directors at
which action on any corporate matter is taken shall be conclusively
presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment of the meeting.
Such right to dissent shall be sent by registered mail to the
Secretary of the corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section l4. Informal Action. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if prior to such
action a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or
committee.
Section l5. Presence at Meetings. Members of the Board of
Directors or any committee thereof may participate in a meeting of
such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation shall
constitute presence at such meeting.
Section l6. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of the
directors of the corporation, which, to the extent provided in the
resolution, shall have and may exercise all the powers and authority
ADDED of the Board of Directors with respect to the management of the
10/2/87 business affairs of the corporation and may authorize the seal of
the corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority of the Board
in reference to amending the Certificate of Incorporation (except
that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors, fix the designations and any of the
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the corporation or
fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all
of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending these By-Laws; and, unless the resolution,
these By-Laws or the Certificate of Incorporation expressly so
provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a
Certificate of Ownership and Merger. Such committee or committees
shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors and the Board may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified
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member at any meeting of the committee. Additionally, in the
absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and
not disqualified from voting, whether or not a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified
member. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required."
ARTICLE IV
COMPANY OFFICERS
Section l. Number. The officers of the corporation shall be a
AMENDED Chairman of the Board, a President, one or more Vice Presidents, a
01/26/96 Secretary and a Treasurer, all of whom shall be elected by the Board
of Directors; and in addition, during such periods as an Executive
Committee shall be appointed, the Board of Directors shall select
one of the members thereof to fill the office of Chairman of the
Executive Committee. The Board of Directors may elect or appoint
one or more Assistant Secretaries, one or more Assistant Treasurers,
and such other subordinate officers and agents as the Board may
determine, to hold office for such period and with such authority
and to perform such duties as may be prescribed by these By-Laws or
as the Board may from time to time determine. Any two or more
AMENDED offices (including without limitation President, Chairman of
10/1/87 the Board and Chairman of the Executive Committee) may be
held by the same person, except the offices of President and Vice
President, and the offices of President and Secretary.
Section 2. Election, Term of Office and Qualifications. The
officers of the corporation shall be elected annually by the Board
of Directors at the first meeting of the Board held after the annual
meeting of stockholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter
as the same can conveniently be held. Each officer shall hold his
office until his successor shall have been duly elected and shall
have qualified or until his death, resignation or removal. The
Chairman of the Board and the Chairman of the Executive Committee
(if any) shall be members of the Board, but none of the other
officers need be a member of the Board. Election or appointment of
an officer or agent shall not of itself create contract rights.
Section 3. Removal. Any of the officers or agents appointed
by the Board of Directors may be removed by the Board of Directors,
whenever in its judgement the best interest of the corporation will
be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise may be
filled by the Board of Directors for the unexpired portion of the
term.
Section 5. Bonds. If the Board of Directors by resolution
shall so require, any officer or agent of the corporation shall give
bond to the corporation in such amount and with such surety as the
Board of Directors may deem sufficient, conditioned upon the
faithful performance of the respective duties and offices.
Section 6. Chairman of the Board; Chief Executive Officer. The
AMENDED Chairman of the Board (and in his absence, disability, or at his
12/2/88 discretion, the President) shall be the chief executive officer of
the corporation. The Chairman of the Board shall preside at all
meetings of
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stockholders and of the Board of Directors; and shall be the
superior officer to all other officers of the corporation. Subject
to the direction and authority of the Board of Directors, the
Chairman of the Board shall be responsible for the implementation
and direction of corporate policy, shall have authority over all
officers of the corporation in the execution of the corporate
policies as reflected in the orders and resolutions of the Board of
Directors, and shall perform such other duties as may be prescribed
by the Board of Directors from time to time.
Section 7. President. Subject to the general control of the
Board of Directors and the Chairman of the Board, the President
AMENDED shall be the chief operating officer of the corporation and as
12/2/88 such shall have the active management of, and exercise detailed
supervision over, the business and affairs of the corporation and
over its several officers. In the absence or disability or at the
direction of the Chairman of the Board, the President shall preside
at all meetings of the stockholders and at meetings of the Board of
Directors. Subject to such general control, the President shall
perform all duties usually incident to the office of President and
such other duties as may be prescribed by the Chairman of the Board
or the Board of Directors from time to time.
AMENDED Section 8. The Vice Presidents. In the absence or disability
1/26/96 of the President, the Vice Presidents shall perform the duties of the
President, and the Vice Presidents shall perform such other duties
as from time to time may be assigned to them by the Chairman of the
Board, the President or the Board of Directors. The Board of
Directors from time to time may determine the number and relative
seniority of the Vice Presidents.
Section 9. Treasurer. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the
corporation; receive and give receipts for monies due and payable to
the corporation from any source whatsoever; deposit or cause to be
deposited all monies in the name and to the credit of the
corporation in such banks, trust companies or other depositaries as
may be designated or selected by the Board of Directors; keep or
cause to be kept full and accurate records and accounts of receipts
and disbursements in books of the corporation and see that said
books are kept in proper form and that they correctly show the
financial transactions of the corporation; disburse or supervise the
disbursement of the funds of the corporation as may be directed by
the Board of Directors or by his superior officers, and take or
cause to be taken proper vouchers for such disbursements; furnish to
the Board of Directors, to any Executive Committee thereof, to the
President, and to such other officers as the Board may designate, at
such times as may be required, an account of all his transactions as
Treasurer; be responsible under the direction of his superior
officers, the Board of Directors, and any Executive Committee
thereof, for activities relating to the obtaining and disbursement
of capital; and in general, perform all of the duties incident to
the office of Treasurer and such other duties as from time to time
may be assigned to him by his superior officers, the Board of
Directors, and any Executive Committee thereof. The books and
papers of the Treasurer shall at all times be open to the inspection
of the President and each member of the Board of Directors.
Section l0. Secretary. The Secretary shall attend all
meetings of the stockholders and of the Board of Directors and keep
the minutes of such meetings in one or more books provided for that
purpose; see that all notices are duly given in accordance with the
provisions of these By-Laws, or as required by law; be custodian of
the corporate records and of the seal of the corporation and see
that the seal of the corporation or a facsimile thereof is affixed
to or impressed on all certificates for shares prior to the issue
thereof, and all documents,
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the execution of which on behalf of the corporation under its seal
is duly authorized; sign with the Chairman of the Board, the
President, or a Vice President certificates for shares of the
corporation, the issue of which shall have been authorized by
resolution of the Board of Directors; have general charge of the
stock transfer books of the corporation and keep or cause to be kept
the stock record and transfer books in such manner as to show at any
time the total number of shares issued and outstanding, the names
and addresses of the holders of record thereof as furnished to him
by such record holders, the number of shares held by each and the
time when each became such holder of record; see that the reports,
statements, certificates and all other documents and records
required by law are properly made, kept and filed; and in general,
perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by his
superior officers, the Board of Directors, and any Executive
Committee thereof.
Section 11. Assistant Treasurers. At the request of the
Treasurer, or in his absence or disability, the Assistant Treasurers
shall perform all duties of the Treasurer, and when so acting shall
have all the powers of, and be subject to all the restrictions upon,
the Treasurer. Any such Assistant Treasurer shall perform such
other duties as from time to time may be assigned to him by his
superior officers, the Board of Directors, and any Executive
Committee thereof.
Section l2. Assistant Secretaries. At the request of the
Secretary, or in his absence or disability, the Assistant
Secretaries shall perform the duties of the Secretary, including
without limitation the signing, with the Chairman of the Board, the
President or a Vice President, of certificates for shares of the
corporation, and when so acting shall have all the powers of, and be
subject to all the restrictions imposed upon, the Secretary. Any
such Assistant Secretary shall perform such other duties as from
time to time may be assigned to him by his superior officers, the
Board of Directors, and any Executive Committee thereof.
Section l3. Compensation. The compensation of the officers
shall be fixed from time to time by the Board of Directors; provided
that no officer shall be prevented from receiving such compensation
by reason of the fact that he is also a director of the corporation.
Section l4. Delegation of Duties. In case of the absence of
disability to act of any officer of the corporation and of any
person authorized to act in his place, the Board of Directors may,
for the time being, delegate the powers and duties, or any of them,
to any other office or any director or other person whom it may
AMENDED select, and the President (or in his absence, the Chairman of the
10/1/87 Board) shall have the
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power to delegate such powers and duties subject to such action as
the Board of Directors or any Executive Committee thereof, may take
with respect to the same matter.
ARTICLE V
DIVISIONS AND DIVISIONAL OFFICERS
Section l. Establishment of Divisions. The Board of
Directors may cause the business and operations of this corporation
to be divided into one or more divisions, based upon product
manufactured, geographical territory, character and type of
operations, operating units or upon such other basis as the Board of
Directors may from time to time determine to be advisable. Such
divisions may operate under division or tradenames approved for such
purpose by the Board of Directors and in such other manner as may be
authorized by the Board.
Section 2. Divisional Officers. The Board of Directors of
the corporation may appoint such officers of the division with such
titles (such as President, Vice President, Secretary, Treasurer,
Assistant Secretaries and Assistant Treasurers of such division) as
may from time to time be deemed appropriate. Divisional officers
shall have such authority with respect to the affairs of their
respective divisions as officers with like titles generally have
with respect to the affairs of any independent corporation or as may
from time to time be assigned by the Chairman of the Board.
With respect to the affairs of each division and in the regular
course of its business, the officers of such division may sign
contracts and other documents in the name of the division; provided,
however, that in no case shall the officer of any one division have
authority to bind another division of the corporation or to bind the
corporation except as to the business and affairs of the division of
which he is an officer.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES
AND TRANSFER OF SHARES
Section l. Regulation. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the
issuance, transfer and registration of certificates for shares of
the corporation, including the appointment of transfer agents and
registrars.
Section 2. Certificates for Shares. Certificates
representing shares of the corporation shall be respectively
numbered serially for each class of shares, or series thereof, as
they are issued, shall be impressed with the corporate seal or a
facsimile thereof, and shall be signed by the Chairman of the Board
or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary;
provided that such signatures may be facsimile on any certificate
countersigned by an independent transfer agent or its employee, or
by an independent registrar or its employee. Each certificate shall
exhibit the name of the corporation, state that the corporation is
organized or incorporated under the laws of the State of Delaware,
the name of the person to whom issued, the date of issue, the class
(or series of any class) and number of shares represented thereby
and the par value of the shares represented thereby or that such
shares are without par value. If the corporation be authorized to
issue stock of more than one class or of more than one series of any
class, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof, and the
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qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face
or back of the certificates which the corporation shall issue to
represent such class or series of stock; provided that, except as
otherwise provided by law, in lieu of the foregoing requirement,
there may set forth on the face or back of the certificates a
statement that the corporation will furnish without charge to each
stockholder who so requests the designations, preferences and
relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights. Each certificate
shall be otherwise in such form as may be prescribed by the Board of
Directors and as shall conform to the rules of any Stock Exchange on
which the shares may be listed.
Section 3. Cancellation of Certificates. All certificates
surrendered to the corporation for transfer shall be cancelled and
no new certificates shall be issued in lieu thereof until the former
certificate for a like number of shares shall have been surrendered
and cancelled, except as herein provided with respect to lost,
stolen or destroyed certificates.
Section 4. Lost, Stolen or Destroyed Certificates. Any
stockholder claiming that his certificate for shares is lost,
stolen, or destroyed may make an affidavit or affirmation of that
fact and lodge the same with the Secretary of the corporation,
accompanied by a signed application for a new certificate.
Thereupon, and upon the giving of a satisfactory bond of indemnity
to the corporation not exceeding in amount double the value of the
shares represented by such certificate, such value to be determined
by the President and Treasurer of the corporation, a new certificate
may be issued of the same tenor and representing the same number,
class and series of shares as were represented by the certificate
alleged to be lost, stolen or destroyed.
Section 5. Transfer of Shares. Shares of the corporation
shall be subject to transfer on the books of the corporation by the
holder thereof in person or by his duly authorized attorney, upon
the surrender and cancellation of a certificate or certificates for
a like number of shares. Upon presentation and surrender of a
certificate for shares properly endorsed and payment of all taxes
therefore, the transferee shall be entitled to a new certificate or
certificates in lieu thereof. As against the corporation, a
transfer of shares can be made only on the books of the corporation
and in the manner hereinabove provided, and the corporation shall be
entitled to treat the holder of record of any share as the owner
thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, save
as expressly provided by the statutes of the State of Delaware.
ARTICLE VII
DIVIDENDS AND RESERVES
Section l. Dividends. Dividends upon the outstanding shares
of the corporation (other than liquidating dividends) may be
declared from its surplus or, in case there be no such surplus, out
of its net profits for the fiscal year in which the dividend is
declared and/or the preceding year. However, if the capital of the
corporation shall have been diminished in any way to an amount less
than the aggregate amount of the capital represented by the issued
and outstanding stock of all classes having a preference upon the
distribution of assets, no dividend shall be declared and paid out
of such net profits until the deficiency in the amount of capital
represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets shall
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have been repaired. Subject to the provisions of the Certificate of
Incorporation, as amended from time to time and to any other lawful
commitments of the corporation, and subject to the provisions of
statute, dividends may be declared and made payable at such times
and in such amounts as the Board of Directors may from time to time
determine. Dividends may be declared at any regular or special
meeting of the Board and may be paid in cash or other property or in
the form of a stock dividend.
Section 2. Reserves. Before declaring any dividend or making
any distribution of net profits, the Board of Directors, from time
to time, may set apart out of any funds of the corporation available
for dividends, a reserve or reserves for working capital, or to meet
contingencies, or for any other lawful purpose, and also, from time
to time, may abolish or decrease any such reserve or reserves.
ARTICLE VIII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section l. Contracts. Any contract or instrument authorized
by the Board of Directors or duly appointed Executive Committee may
be executed by the Chairman of the Board, the President or any Vice
President and attested by the Secretary, any Assistant Secretary,
the Treasurer or any Assistant Treasurer. In addition, the Board of
Directors may authorize any other officer or officers, agent or
agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of
the corporation and no evidence of indebtedness shall be issued in
its name, unless authorized by resolution of the Executive Committee
or the Board of Directors. Such authority may be general or
confined to specific instances.
Section 3. Checks, Drafts, Notes, etc. All checks, drafts or
other orders for the payment of money and all notes or other
evidences of indebtedness issued in the name of the corporation
shall be signed by such officer or officers, agent or agents, of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Depositaries. All funds of the corporation not
otherwise employed shall be deposited from time to time to the
credit of the corporation in such banks, trust companies or other
depositaries as the Board of Directors may designate.
ARTICLE IX
CORPORATE SEAL
The corporate seal shall be circular in form and shall have
inscribed thereon the name of the corporation and the words
"Corporate Seal Delaware". Said seal may be used by causing it, or
a facsimile or equivalent thereof, to be impressed or affixed or
reproduced.
ARTICLE X
FISCAL YEAR
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AMENDED The fiscal year of the corporation shall be a 52-53 week fiscal
5/23/86 year which ends on the last Sunday of May.
ARTICLE XI
STOCK IN OTHER CORPORATIONS
Any shares of stock in any other corporation which may from
time to time be held by this corporation may be represented and
voted at any meeting (or consent in lieu thereof) of shareholders of
such corporation by the Chairman of the Board, the President, a Vice
President or the Secretary of this corporation, or by any other
person or persons thereunto authorized by the Board of Directors, or
by any proxy designated by written instrument of appointment
executed in the name of this corporation by its Chairman of the
Board, President, or a Vice President and attested by the Secretary,
any Assistant Secretary, the Treasurer or any Assistant Treasurer.
ARTICLE XII
GENERAL WAIVER OF NOTICE
Whenever any notice is required to be given under the
provisions of these By-Laws, or under the provisions of the
Certificate of Incorporation, as amended, or under the provisions of
the General Corporation Law of the State of Delaware, waiver thereof
in writing, signed by the person or persons entitled to such notice,
either before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. The presence of a
stockholder in person or by proxy at any meeting of stockholders,
and the presence of a director, in person, at any meeting of the
Board of Directors, shall be deemed to be the equivalent of such
waiver, unless such presence is for the sole purpose of objecting to
the lack of sufficient notice.
ARTICLE XIII
INDEMNIFICATION
Section l. Each person who was or is a party or is threatened
to be made a party to or is involved, including involvement
as a witness, in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the corporation), by reason of the fact that he
(i) is or was or has agreed to become a director or officer of the
corporation or (ii) is or was serving or has agreed to serve (at
or during such time as such individual is or was a director or
AMENDED officer of the corporation) as an employee, agent or fiduciary of
10/2/87 the corporation or, at the request of the corporation, as a
director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise
or entity, including service with respect to an employee benefit
plan, or by reason of any action alleged to have been taken or
omitted by such person in any such capacity, shall be indemnified
and held harmless by the corporation to the fullest extent permitted
by Delaware law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, excise taxes or
penalties under the Employee Retirement Income Security Act of 1974,
amounts paid or to be paid in settlement and amounts expended in
seeking indemnification granted to
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such person under applicable law, this Article, the corporation's
Certificate of Incorporation or any agreement with the corporation)
actually and reasonably incurred or suffered by such person in
connection with such action, suit or proceeding and any appeal
thereof, and such indemnification shall continue as to any such
person who has ceased to be a director or officer of the corporation
and shall inure to the benefit of any such person's heirs, executors
and administrators, if in each case such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action, suit or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding or any appeal thereof by judgment, order,
settlement, conviction, or plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that such
person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe his conduct was unlawful.
Section 2. Each person who was or is a party or is threatened
to be made a party to or is involved, including involvement as a
witness, in any action, suit or proceeding by or in the right of the
corporation to procure a judgment in its favor, by reason of the
fact that he (i) is or was or has agreed to become a director or
officer of the corporation or (ii) is or was serving or has agreed
to serve (at or during such time as such individual is or was a
director or officer of the corporation) as an employee, agent or
fiduciary of the corporation or, at the request of the corporation,
as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise
or entity, including service with respect to an employee benefit
plan, or by reason of any action alleged to have been taken or
omitted by such person in any such capacity, shall be indemnified
and held harmless by the corporation to the fullest extent permitted
by Delaware law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to
provide prior to such amendment) against all expense (including
attorneys' fees and amounts expended in seeking indemnification
granted to such person under applicable law, this Article, the
corporation's Certificate of Incorporation or any agreement with the
corporation) actually and reasonably incurred or suffered by such
person in connection with such action, suit or proceeding and any
appeal thereof, and such indemnification shall continue as to any
such person who has ceased to be a director or officer of the
corporation and shall inure to the benefit of any such person's
heirs, executors and administrators, if in each case such person
acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery of
Delaware or such other court shall deem proper.
Section 3. To the extent that any person referred to in
Section l or 2 of this Article has been successful on the merits or
otherwise, including the dismissal of an action without prejudice,
in defense of any action, suit or proceeding and any appeal thereof
referred to therein or in defense of any claim, issue or matter
therein, he shall be indemnified against all expense (including
attorneys' fees and amounts expended in seeking indemnification
granted to such person under
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applicable law, this Article, the corporation's Certificate of
Incorporation or any agreement with the corporation) actually and
reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Section l or 2 of this
Article (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of any person referred to in Section l or 2 is
proper in the circumstances because he has met the applicable
standard of conduct set forth therein. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum
(as defined in these By-Laws) consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion.
Section 5. Expenses incurred by any person referred to in
Section l or 2 of this Article in defending a civil or criminal
action, suit or proceeding and any appeal thereof shall be paid by
the corporation in advance of the final disposition of such action,
suit or proceeding and any appeal thereof upon receipt by the
corporation of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation.
Section 6. If a claim for indemnification (including an
advancement of expenses) under Section l or 2 is not paid in full by
the corporation within thirty (30) days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit in any court of competent jurisdiction against
the corporation to recover the unpaid amount of the claim and, if
the claimant is successful in establishing his right to
indemnification (or advancement of expenses), in whole or in part,
in any such action (or settlement thereof), he shall be entitled to
be paid by the corporation the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action
brought to enforce a claim for an advancement of expenses where the
required undertaking, if any, has been tendered to the corporation)
that the indemnitee has not met the applicable standard of conduct
described in Section l or 2.
Section 7. Any person serving as a director or officer of
another corporation, partnership, joint venture or other enterprise,
a majority of whose equity interests are owned by the corporation (a
"subsidiary"), directly or through one or more other subsidiaries,
shall be conclusively presumed to be serving in such capacity at the
request of the corporation.
Section 8. Persons who after the date of the adoption of this
provision become or remain directors or officers of the corporation
or who, while a director or officer of the corporation, become or
remain a director, officer, employee, agent or fiduciary of another
entity at the request of the corporation, shall be conclusively
presumed to have relied on the rights to indemnification (including
advancement of expenses) contained in this Article XIII in entering
or continuing such service. The rights contained in this Article
shall apply to claims made against a person arising out of acts or
omissions which occurred prior to the adoption hereof as well as
those which occur after such adoption.
Section 9. The rights conferred on any person in Sections l
and 2 shall not be exclusive of any other right which such person
may have or hereafter acquire under any law, provision of the
Company's Certificate of Incorporation or these By-Laws, agreement,
vote of stockholders or disinterested directors or otherwise.
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Section l0. All rights to indemnification and advancement of
expenses provided by this Article shall be deemed to be a contract
between the corporation and each person referred to in Section l or
2 at any time while this Article is in effect. Any repeal or
modification of this Article, or any repeal or modification of the
relevant provisions of the Delaware General Corporation Law or any
other applicable law, shall not in any way diminish any rights to
indemnification or advancement of expenses to such person or the
obligations of the corporation.
Section 11. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee,
agent or fiduciary of the corporation or, if at the request of the
corporation, of any other corporation, partnership, joint venture,
trust or other enterprise or entity, including employee benefit
plans, against any expense, liability or loss, whether or not the
corporation would have power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation
Law.
Section l2. The Board of Directors is authorized to enter into
a contract with any director, officer, employee, agent or fiduciary
of the corporation, or any person serving at the request of the
corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise or entity, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of
Directors so determines, greater than those provided for in this
Article XIII.
Section l3. The Board of Directors may, by resolution, extend
the provisions of this Article pertaining to indemnification and
advancement of expenses to any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he
is or was or has agreed to become an employee, agent or fiduciary of
the corporation, or is or was serving or has agreed to serve at the
request of the corporation as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise (notwithstanding that such individual may
not be or have been or have ever agreed to become a director or
officer of the corporation).
Section l4. The invalidity or unenforceability of any
provision of this Article shall not affect the validity or
enforceability of the remaining provisions of this Article.
ARTICLE XIV
AMENDMENTS
These By-Laws may be altered, amended or repealed and new or
other By-Laws may be made and adopted by the vote of a
majority of the total number of directors as at the time specified
AMENDED by the By-Laws, at any regular or special meeting of the Board of
10/2/87 Directors, and without prior notice of intent so to do.