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Exhibit 3.2
BY-LAWS
OF
DREYER'S GRAND ICE CREAM, INC.
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BY-LAWS OF
DREYER'S GRAND ICE CREAM, INC.
A DELAWARE CORPORATION
AS LAST AMENDED ON JUNE 14, 1994
ARTICLE I-OFFICES
Section 1.1. Principal Office.
(a) The principal executive office of DREYER'S GRAND ICE CREAM, INC.
(herein called the "Corporation") shall be 5929 College Avenue, Oakland,
California 94618.
(b) The Board of Directors (the "Board") shall have full power and
authority to change the location of the principal executive office.
Section 1.2. Registered Office.
The registered office in the State of Delaware is hereby fixed and
located at The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801. The Board is hereby granted full power and
authority to change the place of said registered office within the State of
Delaware.
Section 1.3. Other Offices.
The Corporation may also have from time to time branch or substitute
offices at such other places as the Board may deem appropriate.
ARTICLE II-STOCKHOLDERS' MEETINGS
Section 2.1. Place.
Meetings of the stockholders shall be at such place within or without
the State of Delaware as the Board shall designate by resolution. In the
absence of such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2.2. Annual Meetings.
The annual meetings of stockholders shall be held on any day and at
any time during either the month of May or such other month as determined by
resolution of the Board. At such meeting directors shall be elected, reports
of the affairs of the Corporation shall be considered, and any other business
may be transacted which is within the powers of the stockholders if properly
brought before the meeting as provided herein.
Written notice of each annual meeting shall be mailed to each
stockholder entitled to vote, addressed to such stockholder at his address
appearing on the books of the Corporation or given by him to the Corporation
for the purpose of notice. If a stockholder gives no address, notice shall be
deemed to have been given if sent by mail or other means of written
communication addressed to the place where the principal executive office of
the Corporation is situated, or if published at least once in some newspaper of
general circulation in the county in which said office is located. All such
notices shall be mailed, postage prepaid, to each stockholder entitled thereto
not less than ten (10) days nor more than sixty (60) days before each annual
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meeting. Such notices shall specify the place, the day, and the hour of such
meeting, the names of the nominees for election and those matters which the
Board intends to present for action by the stockholders, and shall state such
other matters, if any, as may be expressly required by statute. Any previously
scheduled annual meeting of the stockholders may be postponed by resolution of
the Board upon public notice given on or prior to the date previously scheduled
for such meeting.
Section 2.3. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes, may
be called at any time by the Board, the Chairman of the Board, the President,
or by a committee of the Board which has been duly designated by the Board and
whose powers and authority, as provided in a resolution of the Board or in the
By-Laws of the Corporation, include the power to call such meetings, but such
special meetings may not be called by any other person or persons; provided,
however, that if and to the extent that any special meeting of stockholders may
be called by any other person or persons specified in any provisions of the
Certificate of Incorporation or any amendment thereto, or any certificate filed
under Section 151(g) of the Delaware General Corporation law designating the
number of shares of Preferred Stock to be issued and the rights, preferences,
privileges and restrictions granted to or imposed on the holders of such
designated Preferred Stock, as permitted by Article Fifth of the Certificate of
Incorporation, then such special meeting may also be called by the person or
persons in the manner, at the times and for the purposes so specified. Except
in special cases where other express provision is made by statute, notice of
such special meeting shall be given in the same manner as for an annual meeting
of stockholders. Said notice shall specify the general nature of the business
to be transacted at the meeting. No business shall be transacted at a special
meeting except as stated in the notice sent to stockholders, unless by the
unanimous consent of all stockholders represented at the meeting, either in
person or by proxy. Upon written request to the Chairman of the Board, the
President or the Secretary or any Vice President of the Corporation by any
person (but not the Board) entitled to call a special meeting of stockholders,
the person receiving such request shall cause a notice to be given to
stockholders entitled to vote that a meeting will be held at a time requested
by the person calling the meeting not less than thirty-five (35) nor more than
sixty (60) days after the receipt of the request. Any previously scheduled
special meeting of the stockholders may be postponed by resolution of the Board
upon public notice given on or prior to the date previously scheduled for such
meeting.
Section 2.4. Nomination and Stockholder Business.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board and
the proposal of business to be considered by the
stockholders may be made at an annual meeting of
stockholders (A) pursuant to the Corporation's notice
of meeting, (B) by or at the direction of the Board
or (C) by any stockholder of the Corporation who was
a stockholder of record at the time of giving of
notice provided for in this Section 2.4 who is
entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 2.4.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder
pursuant to clause (c) of subparagraph (a)(1) of this
Section 2.4, the stockholder must have given timely
notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal
executive office of the Corporation not less than 60
days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary
date,
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notice by the stockholder to be timely must be so
delivered not earlier than the 90th day prior to such
annual meeting and not later than the close of
business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on
which public announcement of the date of such meeting
is first made. Such stockholder's notice shall set
forth (A) as to each person whom the stockholder
proposes to nominate for election or re-election as a
director all information relating to such person that
is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (B)
as to any other business that the stockholder
proposes to bring before the meeting, a brief
description of the business desired to brought before
the meeting, the reasons for conducting such business
at the meeting and any material interest in such
business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made;
and (C) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and
(ii) the class and number of shares of the
Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
subparagraph (a)(2) of this Section 2.4 to the
contrary, in the event that the number of directors
to be elected to the Board of the Corporation is
increased and there is no public announcement naming
all of the nominees for Director or specifying the
size of the increased Board made by the Corporation
at least 70 days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's
notice required by this Section 2.4 shall also be
considered timely, but only with respect to nominees
for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal
executive office of the Corporation not later than
the close of business on the 10th day following the
day on which such public announcement is first made
by the Corporation.
(b) Special Meetings of Stockholders. Nominations of persons for
election to the Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (A)
by or at the direction of the Board or (B) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.4, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 2.4.
Nominations by stockholders of persons for election to the Board may be made at
such special meeting of stockholders if the stockholder's notice required by
subparagraph (a) (2) of this Section 2.4 shall be delivered to the Secretary at
the principal executive office of the Corporation not earlier than the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such
meeting.
(c) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 2.4
shall be eligible to serve as directors and only such
business shall be conducted at a meeting of
stockholders as shall have been brought before the
meeting in accordance with the procedures set forth
in this Section 2.4. The
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Chairman of the meeting shall have the power and duty
to determine whether a nomination or any business
proposed to be brought before the meeting was made in
accordance with the procedures set forth in this
Section 2.4 and, if any proposed nomination or
business is not in compliance with this Section 2.4,
to declare that such defective proposal shall be
disregarded.
(2) For purposes of this Section 2.4, "public
announcement" shall mean disclosure in a press
release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a
document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 2.4, 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 this Section 2.4. Nothing in
this Section 2.4 shall be deemed to affect any rights
of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 2.5. Waiver of Notice.
Transactions at a meeting of stockholders, however called and noticed
and wherever held, shall be valid as though transacted at a meeting duly held
after regular call and notice if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, not present at the meeting in person or by proxy, signs a written
waiver of notice, a consent to the holding of the meeting, or an approval of
the minutes thereof. Attendance by a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened, and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
required by law to be in the notice of the meeting but not so included, if that
objection is expressly made at the meeting. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of stockholders.
Section 2.6. Action Without Meeting.
No action shall be taken by the stockholders except at an annual or
special meeting of stockholders.
Section 2.7. Quorum.
A majority of the shares entitled to vote, represented in person or by
proxy, constitutes a quorum for the transaction of business. No business may
be transacted at a meeting in the absence of a quorum other than the
adjournment of such meeting, except that if a quorum is present at the
commencement of a meeting, business may be transacted until the meeting is
adjourned even though the withdrawal of stockholders results in less than a
quorum. If a quorum is present at a meeting, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on any
matter shall be the act of the stockholders unless the vote of a larger number
is required by law, the Certificate of Incorporation or these By-Laws. If a
quorum is present at the commencement of a meeting but the withdrawal of
stockholders results in less than a quorum,
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the affirmative vote of the majority of shares required to constitute a quorum
shall be the act of the stockholders unless the vote of a larger number is
required by law, the Certificate of Incorporation or these By-Laws. Any
meeting of stockholders, whether or not a quorum is present, may be adjourned
by the Chairman of the meeting or by the vote of a majority of the shares
represented at the meeting.
Section 2.8. Adjourned Meetings and Notice Thereof.
Any stockholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of a majority of the
shares, the holders of which are either present in person or represented by
proxy thereat.
Notice of an adjourned meeting need not be given if (a) the meeting is
adjourned for thirty (30) days or less, (b) the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is taken, and (c)
no new record date is fixed for the adjourned meeting. Otherwise, notice of
the adjourned meeting shall be given as in the case of an original meeting.
Section 2.9. Voting.
Except as provided below or as otherwise provided by the Certificate
of Incorporation or by law, a stockholder shall be entitled to one vote for
each share held of record on the record date fixed for the determination of the
stockholders entitled to vote at a meeting or, if no such date is fixed, the
date determined in accordance with law. If any share is entitled to more or
less than one vote on any matter, all references herein to a majority or other
proportion of shares shall refer to a majority of other proportion of the
voting power of shares entitled to vote on such matter. The Board, in its
discretion, or the officer presiding at a meeting of stockholders in his
discretion, may require that any votes cast at such meeting, including a vote
for directors, be by written ballot.
Section 2.10. Proxies.
A stockholder may be represented at any meeting of stockholders by a
written proxy signed by the person entitled to vote or by such person's duly
authorized attorney-in-fact. A proxy must bear a date within three (3) years
prior to the meeting, unless the proxy specifies a different length of time. A
revocable proxy is revoked by a writing delivered to the Secretary of the
Corporation stating that the proxy is revoked or by a subsequent proxy executed
by, or attendance at the meeting and voting in person by, the person executing
the proxy.
Section 2.11. Inspectors of Election.
(a) In advance of a meeting of stockholders, the Board may appoint
inspectors of election to act at the meeting. If inspectors of election are
not so appointed, or if any persons so appointed fail to appear or refuse to
act, the Chairman of the meeting may, and on request of a stockholder shall,
appoint inspectors of election (or persons to replace those who so fail or
refuse) for the meeting. The number of inspectors shall be either one or
three. If appointments are to be made at a meeting on the request of a
stockholder, the majority of stockholder votes represented in person or by
proxy shall determine whether the number of inspectors shall be one or three.
Each inspector, before discharging 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 ability.
(b) Such inspectors of election shall (i) determine the number of
shares outstanding, the number of shares represented at the meeting, the voting
power of each share, the existence of a quorum, and the validity of proxies;
(ii) receive votes, ballots, or consents; (iii) hear and determine all
challenges and questions arising in connection with the right to vote; (iv)
count and tabulate votes or consents; (v) determine when the polls
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shall open and close; (vi) determine the result of an election; (vii) do such
other acts as may be proper in order to conduct the election with fairness to
all stockholders; and (viii) perform such other duties as may be prescribed by
law. The Chairman of the meeting shall announce at the meeting the date and
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at the meeting. If there are three inspectors of
election, the decision of a majority shall be effective in all respects as the
decision of all.
Section 2.12. List of Stockholders.
The Secretary of the Corporation shall prepare and make, at least ten
(10) days before every meeting of the 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, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
ARTICLE III-DIRECTORS
Section 3.1. Powers and Duties.
The business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised, by or under the direction of the Board,
subject to any limitations contained in these By-Laws, the Certificate of
Incorporation or the General Corporation Law of Delaware. The Board may
delegate the management of the day-to-day operation of the business of the
Corporation to a management company or other person, provided that the business
and affairs of the Corporation shall remain under the ultimate direction of the
Board. Without limiting the generality of the foregoing, it is expressly
declared that the Board shall have the following powers:
(1) To conduct, manage and control the affairs and business of
the Corporation and to make such rules and regulations therefore, not
inconsistent with law, the Certificate of Incorporation or these
By-Laws, as the Board may deem advisable.
(2) To select or remove all officers, agents and employees of
the Corporation, to prescribe powers and duties for them, and to fix
their compensation.
(3) To adopt, make use of or alter the corporate seal and the
forms of certificates of stock.
(4) To authorize the issuance of shares of stock from time to
time, upon such terms and for such consideration as may be lawful.
(5) To borrow money and incur indebtedness for the purposes of
the Corporation, and to cause to be executed therefore, in the
Corporate name, evidences of indebtedness and securities of such
indebtedness.
Section 3.2. Number of Directors.
(a) Except as provided in any certificate filed pursuant to Section
151(g) of the General Corporation Law of Delaware designation the number of
shares of Preferred Stock to be issued and the rights, preferences,
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privileges and restrictions granted to or imposed on the holders of such
designated Preferred Stock, as permitted by Article Fifth of the Certificate of
Incorporation, the authorized number of directors of this Corporation shall not
be less than five (5) nor more than nine (9). The exact number of directors
shall be fixed from time to time by an amendment to subsection (b) of this
Section duly adopted by the Board or by a vote of not less than eighty percent
(80%) of the outstanding stock of the Corporation entitled to vote thereon.
(b) Subsection (a) of this Section provides for an indefinite number
of directors and requires this subsection, from time to time to specify the
exact number. Pursuant thereto it is hereby specified that this Corporation
shall have nine (9) directors.
Section 3.3. Election and Term of Office.
(a) The Board shall be and is divided into three classes: Class I,
Class II and Class III, which shall be as nearly equal in number as possible.
Each director shall serve for a term ending on the date of the third annual
meeting of stockholders following the annual meeting at which the director was
elected; provided, however, that each initial director in Class I shall hold
office until the annual meeting of stockholders in 1986; each initial director
in Class II shall hold office until the annual meeting of stockholders in 1987;
and each initial director in Class III shall hold office until the annual
meeting of stockholders in 1988. In the event the number of directors cannot
be divided evenly among the three Classes, Class I shall contain the smallest
number of directors and Class III shall contain the largest number of
directors. Notwithstanding the foregoing provisions of this Section 3.3, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal.
(b) In the event of any increase or decrease in the authorized number
of directors, (1) each director then serving as such shall nevertheless
continue as a director of the class of which he is a member until the
expiration of his current term, or his earlier resignation, removal from office
or death, and (2) the newly created or eliminated directorship resulting from
such increase or decrease shall be apportioned by the Board among the three
classes of directors so as to maintain such classes as nearly equal as
possible.
Section 3.4. Resignation, Removal and Vacancies.
(a) A director may resign by giving written notice to the Board, the
Chairman of the Board, the President or the Secretary. Such resignation shall
take effect upon receipt of such notice or at a later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. If the resignation of a director
is effective at a future time, the Board may elect a successor to take office
when the resignation becomes effective.
(b) A director may be removed from office at any time, but only for
cause, and only by the affirmative vote of the holders of a majority of the
shares entitled to vote at an election of directors. No reduction in the
number of directors shall have the effect of removing any director prior to the
expiration of his term.
(c) Any vacancies in the Board for any reason, and any newly created
directorships resulting from any increase in the number of directors, may be
filled by the Board, acting by a majority of the directors then in office,
although less than a quorum or by a sole remaining director; and any directors
so chosen shall hold office until the next election of the class for which such
directors shall have been chosen, and until their successors shall be elected
and qualified.
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Section 3.5. Place of Meeting.
The Board may designate a place within or without the State of
Delaware where a regular or special meeting of the Board shall be held. In the
absence of such designation, regular meetings shall be held at the principal
executive office of the Corporation.
Section 3.6. Meetings by Conference Telephone.
A meeting of the Board may be held through the use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in such a
meeting shall constitute presence at such meeting.
Section 3.7. Regular Meetings.
Regular meetings of the Board shall be held at any place within or
outside the State of Delaware and at such times as shall from time to time be
determined by resolution of the Board. No call or notice of any regular
meeting of the Board shall be necessary.
Section 3.8. Special Meetings and Notice.
A special meeting of the Board for any purpose may be called at any
time by the Chairman of the Board, the President, the Secretary, or any two
directors. Notice of each special meeting shall be given to each director, but
such notice need not specify the purpose of the meeting. Such notice shall be
given two days prior to the meeting if given by mail, or 24 hours prior to the
meeting if delivered personally or by telephone or telegraph. Such notice
shall be addressed or delivered to each director at such director's address as
shown upon the records of the Corporation or as may have been given to the
Corporation by the director for the purposes of notice. If such address is not
shown on the corporate records or is not readily ascertainable, notice may be
delivered to the place at which meetings of the Board are regularly held.
Notice need not be given to any director who signs a waiver of notice (whether
before or after the meeting) or who attends the meeting without protesting the
lack of notice prior to its commencement.
Section 3.9. Waiver of Notice.
Transactions at any meeting of the Board, however called and noticed
and wherever held, shall be valid as though transacted at a meeting duly held,
after regular call and notice, if (i) a quorum is present, (ii) no director
present protests lack of notice prior to the commencement of the meeting, and
(iii) each director not present at the meeting signs a written waiver of
notice, a consent to holding such meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 3.10. Quorum.
A majority of the directors then in office shall constitute a quorum
for the transaction of business, provided that unless the authorized number of
directors is one, the number constituting a quorum shall not be less than the
greater of one-third of the authorized number of directors or two directors.
Except as otherwise provided by the Certificate of Incorporation or these
By-Laws, every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present is the act of the
Board. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting. A majority of the directors present at a meeting, whether or not a
quorum is present, may adjourn the meeting to another time and place.
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Section 3.11. Adjournment and Notice Thereof.
Any meeting of the Board, whether or not a quorum is present, may be
adjourned by a majority vote of the directors present. If the meeting is
adjourned for more than 24 hours, notice of any adjournment to another time or
place shall be given prior to the time of the adjourned meeting to the
directors who were not present at the time of the adjournment.
Section 3.12. Action Without Meeting.
Any action required or permitted to be taken by the Board may be taken
without a meeting if all members of the Board individually or collectively
consent in writing to such action. Such written consent shall be filed with
the minutes of the proceedings of the Board. Such action by written consent
shall have the same force and effect as a unanimous vote of the directors at a
duly held meeting of the Board.
Section 3.13. Compensation.
Directors and members of committees may be paid such compensation for
their services as may be determined by resolution of the Board. This section
shall not be construed to preclude any director from serving the Corporation in
any other capacity as an officer, agent, employee, or otherwise, and receiving
compensation for those services.
Section 3.14. Committees.
(a) The Board may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board. In
the absence or disqualification of any member of a committee of the Board, the
other members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board to act in the place of such absent or disqualified member.
The Board may designate one or more directors as alternate members of a
committee who may replace any absent member at any meeting of the committee.
To the extent permitted by resolution of the Board, a committee may exercise
all of the authority of the Board to the extent permitted by Section 141 (c) of
the General Corporation Law of Delaware, except with respect to:
(1) the approval of any action which, under the General
Corporation Law of Delaware, also requires stockholders' approval or
approval of the outstanding shares;
(2) the filling of vacancies on the Board or in any committee;
(3) the fixing of compensation of the directors for serving on
the Board or on any committee;
(4) the amendment or repeal of the By-Laws or the adoption of
new By-Laws;
(5) the amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(6) a distribution to the stockholders of the Corporation,
except at a rate or in a periodic amount or within a price range
determined by the Board; or
(7) the appointment of any other committees of the Board or
the members of these committees.
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(b) Meetings and action of committees shall be governed by, and held
and taken in accordance with, the provisions of Article III of these By-Laws,
Section 3.5 (place of meeting), Section 3.6 (meetings by conference telephone),
Section 3.7 (regular meetings), Section 3.8 (special meetings and notice),
Section 3.9 (waiver of notice), Section 3.10 (quorum), Section 3.11
(adjournment and notice), and Section 3.12 (action without meeting), with such
changes in the context of those By-Laws as are necessary to substitute the
committee and its members of the Board and its members, except that the time of
regular meetings of committees may be determined either by resolution of the
Board or by resolution of the committee; special meetings of committees may
also be called by resolution of the Board or by resolution of the committee;
special meetings of committees may also be called by resolution of the Board;
and notice of special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all meetings of the
committee. The Board may adopt rules for the government of any committee not
inconsistent with the provisions of these By-Laws.
Section 3.15. Right of Inspection.
Each director shall have the right at any reasonable time to inspect
and copy all books, records and documents of every kind and to inspect the
physical properties of the Corporation and its subsidiary corporations,
domestic or foreign. Such inspection by a director may be made in person or by
agent or attorney and includes the right to copy and make extracts.
ARTICLE IV-OFFICERS
Section 4.1. Officers.
The Corporation shall have (i) a Chairman of the Board or a President
(or both), (ii) a Vice President, (iii) a Secretary, and (iv) a Chief Financial
Officer. The Corporation may also have, at the discretion of the Board, one or
more other Vice Presidents, one or more Assistant Secretaries, a Treasurer, one
or more Assistant Treasurers, and such other officers as the Board may deem
appropriate. Any number of offices may be held by the same person.
Section 4.2. Additional Officers.
Officers other than the Chairman of the Board, the President, the
Secretary and the Chief Financial Officer are herein referred to as Additional
Officers. The Board may elect, and may empower the President to appoint, such
Additional Officers as the Board may deem appropriate. Each Additional Officer
shall hold office for such period, shall have such authority, and shall perform
such duties, as are provided in these By-Laws or as the Board may designate.
Section 4.3. Election and Term of Office.
Except as otherwise herein provided, the officers of the Corporation
shall be elected by the Board at its regular organizational meeting or at a
subsequent meeting. Each officer shall hold office at the pleasure of the
Board, or until his death, resignation or removal.
Section 4.4. Resignation and Removal.
(a) An officer may resign at any time by giving written notice to the
Corporation. Such resignation shall be without prejudice to any rights the
Corporation may have under any contract to which the officer is a party. Such
resignation shall take effect upon the receipt of such notice or at a later
time specified therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
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(b) The Board may remove any officer with or without cause, and such
action shall be conclusive upon the officer so removed. The Board may
authorize any officer to remove subordinate officers. Any removal shall be
without prejudice to rights the officer may have under any employment contract
with the Corporation.
Section 4.5. Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification, or any other cause shall be filled in the manner prescribed
in these By-Laws for election or appointment to such office.
Section 4.6. Chairman of the Board.
The Chairman of the Board, if there be such an officer, shall preside
at all meetings of the Board at which he is present and shall exercise and
perform such other powers and duties as may be prescribed by the Board or
By-Laws. Even if there is a president, the Chairman of the Board shall in
addition be the Chief Executive Officer of the Corporation. The Chief
Executive Officer of the Corporation shall have and be vested with general
supervisory power and authority over the business and affairs of the
Corporation. He shall see that all orders and resolutions of the Board are
carried into effect. He shall sign or countersign or authorize another officer
of the Corporation to sign all certificates contracts, and other instruments of
the Corporation as authorized by the Board, shall make reports to the Board and
stockholders and shall perform all such other duties as may be directed by the
Board or the By-Laws. He shall vote, in the name of the Corporation, stock in
other corporations or interests in other associations held by the Corporation,
unless another officer is designated by the Board.
Section 4.7. President.
The President shall have and be vested with general supervisory power
and authority over the business and affairs of the Corporation and shall
perform all such duties as may be directed by the Board or these By-Laws,
subject at all times to the authority of the Chief Executive Officer. The
President shall also have and exercise all of the duties, power and authority
prescribed for the Chief Executive Officer except with respect to such specific
authority as the Chairman of the Board may from time to time reserve unto
himself.
Section 4.8. Vice Presidents.
Vice Presidents shall have such powers and duties as may be prescribed
by the Board or the President. A Vice President designated by the Board shall,
in the absence or disability of the President, perform all the duties of the
President; and when so acting such Vice President shall have all the powers of
the President.
Section 4.9. Chief Financial Officer.
The Chief Financial Officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board. He shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the President
and directors, whenever they request it, an account of all of his transactions
as Chief Financial Officer and of the financial condition of the Corporation,
and shall have other powers and perform such other duties as may be prescribed
by the Board or the By-Laws.
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If there be any Treasurer, the Treasurer shall, in the event of
absence, disability or refusal to act of the Chief Financial Officer, perform
the duties and exercise the powers of the Chief Financial Officer, and shall
have such powers and discharge such duties as may be assigned from time to time
by the President or by the Board.
Section 4.10. Secretary.
(a) The Secretary shall keep or cause to be kept full and accurate
records of all meetings of stockholders and all meetings of directors. Such
records shall include books of minutes of all meetings of stockholders,
meetings of the Board, and meetings of committees. The information in such
books of minutes shall include the names of those present at Board and
committee meetings and the number of shares represented at stockholders'
meetings.
(b) The Secretary shall give or cause to be given notice of all
meetings of stockholders, of the Board, and of any committees, whenever such
notice is required by law or these By-Laws.
(c) The Secretary shall keep or cause to be kept at the principal
executive office, or at the office of the Corporation's transfer agent or
registrar if either be appointed, a share register, or a duplicate share
register, showing the names of the stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for such shares, and the number and date of cancellation of every certificate
surrendered for cancellation.
(d) The Secretary shall keep or cause to be kept a copy of the By-Laws
of the Corporation at the principal executive office.
(e) The Secretary shall keep the corporate seal in safe custody.
(f) The Secretary shall have all the powers and duties ordinarily
incident to the office of a secretary of a corporation and such other duties as
may be prescribed by the Board.
(g) If there be any Assistant Secretaries, one or more Assistant
Secretaries, in order of seniority, shall, in the event of the absence,
disability or refusal to act of the Secretary, perform the duties and exercise
the powers of the Secretary, and shall have such powers and discharge such
duties as may be assigned from time to time by the President or by the Board.
Section 4.11. Compensation.
The Board may fix, or may appoint a committee to fix, the compensation
of all officers and employees of the Corporation. The Board may authorize any
officer upon whom the power of appointing subordinate officers may have been
conferred to fix the compensation of such subordinate officers.
ARTICLE V-DIVIDENDS AND FINANCE
Section 5.1. Dividends.
(a) Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by
the Board at any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation.
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(b) Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 5.2. Deposits and Withdrawals.
The monies of the Corporation shall be deposited in the name of the
Corporation in such bank or banks or trust company or trust companies as the
Board shall designate, and shall be drawn out only by check signed by persons
designated by resolutions of the Board.
Section 5.3. Fiscal Year.
The fiscal year of the Corporation shall be a 52-53 week year ending
the last Saturday in December in each year unless otherwise provided by the
Board.
ARTICLE VI-MISCELLANEOUS
Section 6.1. Record Date.
The Board may fix a time, in the future, not more than sixty (60) nor
less than ten (10) days prior to the date of any meeting of stockholders, nor
more than sixty (60) days prior to the date fixed for the payment of any
dividend or distribution, or for the allotment of rights, or when any change or
conversion or exchange of shares shall go into effect, as a record date for the
determination of the stockholders entitled to notice of and to vote at any such
meeting, or entitled to receive any such dividend or distribution, or such
allotment of rights, or to exercise the rights in respect to any such change,
conversion, or exchange of shares, and in such case except as provided by law,
only stockholders of record on the date so fixed shall be entitled to notice of
and to vote at such meeting or to receive such dividend, distribution or
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation
after any record date fixed as aforesaid. 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 unless the Board fixes a new record
date. The Board shall fix a new record date if the adjourned meeting takes
place more than 30 days from the date set for the original meeting.
Section 6.2. Maintenance and Inspection of Share Register.
The Corporation shall keep at its principal executive office, or at
the office of its transfer agent or registrar, if either be appointed and as
determined by resolution of the Board, a record of its stockholders, giving the
names and addresses of all stockholders and the number and class of shares held
by each stockholder.
Section 6.3. Registered Stockholders.
Registered stockholders only shall be entitled to be treated by the
Corporation as the holders in fact of the shares standing in their respective
names and the Corporation shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of Delaware.
Section 6.4. Inspection of By-Laws.
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The Corporation shall keep at its principal executive office the
original or a copy of these By-Laws as amended to date, which copy shall be
open to inspection by stockholders at reasonable times during office hours. If
it should ever occur that the principal executive office is outside of
California and the Corporation has no principal business office in California,
the Corporation shall, upon the written request of any stockholder, furnish
such stockholder with a copy of these By-Laws as amended to date.
Section 6.5. Inspection by Directors.
Every director shall have the absolute right at any reasonable time to
inspect all books, records, and documents of every kind and the physical
properties of the Corporation and each of its subsidiary corporations. This
inspection by a director may be made in person or by an agent or attorney and
the right of inspection includes the right to copy and make extracts of
documents.
Section 6.6. Corporate Seal.
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the Corporation, the date of its incorporation and the word
"Delaware."
Section 6.7. Certificates of Stock.
(a) Every holder of shares of the Corporation shall be entitled to
certificates certifying the number of shares owned by the stockholder and the
class or series of such shares. Each certificate shall be signed in the name
of the Corporation by (i) the Chairman of the Board, a Vice Chairman of the
Board, the President, or a Vice President, and (ii) the Chief Financial
Officer, Treasurer, an Assistant Treasurer, the Secretary, or an Assistant
Secretary. Any of the signatures on the certificate may be facsimile. If any
officer, transfer agent or registrar whose signature appears on the certificate
shall cease to be such an officer, transfer agent or registrar before such
certificate is issued, the certificate may be issued by the Corporation with
the same effect as if such person continued to be an officer, transfer agent or
registrar at the date of issue.
(b) Certificates for shares may be issued prior to full payment under
such restrictions and for such purposes as the Board may lawfully provide;
provided, however, that on any certificate issued to represent any partly paid
shares, the total amount of the consideration to be paid therefor and the
amount paid thereof shall be stated.
(c) Except as provided in this Section 6.7, no new certificate for
shares shall be issued in lieu of an old one unless the old certificate is
surrendered and cancelled at the same time. The Corporation may, however, in
case any certificate is alleged to have been lost, stolen or destroyed,
authorize the issuance of a new certificate in lieu thereof; and the
Corporation may require that it be given a bond or other adequate security
sufficient to indemnify the Corporation against any claim that may be made
against it (including expense or liability) on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new
certificate.
(d) Prior to due presentation of transfers for registration in the
stock transfer book of the Corporation, the registered owner of shares shall be
treated as the person exclusively entitled to vote, to receive notice, and to
exercise all other rights and receive all other entitlements of stockholders,
except as may be provided otherwise by Delaware law.
Section 6.8. Execution of Written Instruments.
As used in these By-Laws, the term "written instruments" includes
without limitation any note, mortgage, evidence of indebt edness, contract,
share certificate, conveyance, and any assignment or
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endorsement of the foregoing. All written instruments shall be binding upon
the Corporation if signed on its behalf by the Chief Executive Officer or if
signed in such other manner as may be authorized by the Board, or within the
agency power of the officer executing it, so long as the party seeking to
enforce such obligations had no actual knowledge that the signing officer was
without authority to execute such written instrument.
Section 6.9. Representation of Shares of Other Corporations.
The Chairman of the Board, President, any Vice President, the
Secretary, the Chief Financial Officer and such other officers as the Board may
designate by resolution are each authorized to exercise on behalf of the
Corporation all rights incident to shares of any other corporation standing in
the name of the Corporation.
Section 6.10. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he 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
another company or of a partnership, joint venture, trust or other enterprise
including, without limitation, an employee benefit plan, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, against all expense, liability and loss (including attorneys' fees,
judgments, fines, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent of the Corporation and shall inure to the benefit of
his heirs, executors and administrators. The right to indemnification
conferred in this Section 6.10(a) shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that if the Delaware General
Corporation Law requires, the advance payment of such expenses incurred by a
director or officer in his capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section 6.10 or otherwise.
(b) Application to a Court. If a written claim for indemnification
under this Section 6.10 made by a director, officer, employee or agent of the
Corporation is not paid in full within thirty days after such claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled to be paid
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 expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
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(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 6.10 is a contract right and shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Corporation's Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
(d) Insurance. The Corporation may 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 another company, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such.
The extent of the protection afforded by such insurance need not be limited by
any restrictions on the Corporation's power to indemnify such persons.
Section 6.11. Construction.
Unless the context otherwise requires, the general provisions, rules
of construction and definitions contained in the General Provisions of the
General Corporation Law of Delaware shall govern the construction of these
By-Laws. Without limiting the generality of this provision, the singular
includes the plural, plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
Section 6.12. Amendment of These By-Laws.
Except as set forth in the Corporation's Certificate of Incorporation,
new By-Laws of this Corporation may be adopted or these By-Laws may be amended
or rescinded by a vote of either a majority of directors of the Corporation or
a vote of not less than eighty percent (80%) of the outstanding stock of the
Corporation entitled to vote thereon.
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