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EXHIBIT 3.2
BY-LAWS
OF
RISER FOODS, INC.
SECTION 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 These by-laws are subject to the certificate of incorporation of the
corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of shareholders shall be held at
10:00 a.m. on the second Tuesday of November in each year (unless that day be a
legal holiday at the place where the meeting is to be held, in which case the
meeting shall be held at the same hour on the next succeeding day not a
Saturday, Sunday or legal holiday) or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect a board of directors and transact such
other business as may be required by law or these by-laws or as may properly
come before the meeting.
2.2 Special Meetings. Unless otherwise provided in the certificate of
incorporation, a special meeting of the shareholders may be called at any time
by the chairman of the board or a co-chairman of the board, if any, the
president or the secretary, or pursuant to a resolution of the board of
directors, or by shareholders who hold twenty-five percent (25%) of the voting
power of all shares of stock of all classes outstanding and voting as a single
class. A special meeting of the shareholders shall be called by the secretary,
or in the case of the death, absence, incapacity or refusal of the secretary, by
an assistant secretary or some other officer, upon application of the person or
persons entitled to call the meeting or as otherwise provided in the certificate
of incorporation. Any such application shall state the purpose or purposes of
the proposed meeting. Any such call shall state the place, date, hour, and
purposes of the meeting.
2.3 Place of Meeting. All meetings of the shareholders for the election of
directors or for any other purpose shall be held at such place within or without
the State of Delaware as may be determined from time to time by the chairman of
the board or both co-chairmen of the board, if any, the president or the board
of directors. Any adjourned session of any meeting of the shareholders shall be
held at the place of the session at which the adjournment was taken unless
another place is designated in the vote of adjournment.
2.4 Notice of Meetings. Except as otherwise provided by law, a written
notice of each meeting of shareholders stating the place, day and hour thereof
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
meeting, to each shareholder entitled to vote thereat, and to each shareholder
who, by law, by the certificate of incorporation or by these by-laws, is
entitled to notice, by leaving such notice with him or at his residence or usual
place of business, or by depositing it in the United States mail, postage
prepaid, and addressed to such shareholder at his address as it appears in the
records of the corporation. Such notice shall be given by the secretary, or by
an officer or person designated by the board of directors, or in the case of a
special meeting by the officer calling the meeting. As to any adjourned session
of any meeting of shareholders, notice of the adjourned meeting need not be
given if the time and place thereof are announced at the meeting at which the
adjournment was taken except that if the adjournment is for more than thirty
days or if after the adjournment a new record date is set for the adjourned
session, notice of any such adjourned session of the meeting shall be given in
the manner
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heretofore described. No notice of any meeting of shareholders or any adjourned
session thereof need be given to a shareholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
shareholder, is filed with the records of the meeting or if the shareholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the shareholders or any adjourned session thereof need be specified
in any written waiver of notice.
2.5 Quorum of Shareholders. At any meeting of the shareholders, a quorum as
to any matter shall consist of a majority of the votes entitled to be cast on
the matter, except where a larger quorum is required by law, by the certificate
of incorporation or by these by-laws. Any meeting may be adjourned from time to
time by a majority of the votes properly cast upon the question, whether or not
a quorum is present. If a quorum is present at an original meeting, a quorum
need not be present at an adjourned session of that meeting. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of any corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.6 Action by Vote. Unless otherwise provided in the certificate of
incorporation, when a quorum is present at any meeting, a plurality of the votes
properly cast for election to any office shall elect to such office and a
majority of the votes properly cast upon any question other than an election to
an office shall decide the question, except when a larger vote is required by
law, by the certificate of incorporation or by these by-laws. No ballot shall be
required for any election unless requested by a shareholder present or
represented at the meeting and entitled to vote in the election.
Except as may be otherwise required by law or the certificate of
incorporation, the shareholders shall not, without approval by the affirmative
vote of at least 80% of the total voting power of the outstanding shares of
stock of the corporation of all classes, voting as a single class:
(1) Increase or decrease the number of directors which shall
constitute the entire board of directors;
(2) Remove from the board of directors any director, except "for
cause" (as defined in Section 3.10 hereof); or
(3) Amend, modify or repeal, or adopt any provision inconsistent with,
any provision of this Section 2.6 or of Section 3, "BOARD OF DIRECTORS", of
these by-laws, or any provision of Article VI, Article VII or Article VIII
of the certificate of incorporation.
2.7 Action without Meetings. Unless otherwise provided in the certificate
of incorporation, any action required or permitted to be taken by shareholders
for or in connection with any corporate action may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted.
If action is taken by unanimous consent of shareholders, the writing or
writings comprising such unanimous consent shall be filed with the records of
the meetings of shareholders.
If action is taken by less than unanimous consent of shareholders and in
accordance with the foregoing, there shall be filed with the records of the
meetings of shareholders the writing or writings comprising such less than
unanimous consent. Prompt notice of the taking of the
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corporate action without a meeting by less than unanimous written consent shall
be given to those who have not consented in writing and a certificate signed and
attested to by the secretary that such notice was given shall be filed with the
records of the meetings of shareholders.
In the event that the action which is consented to is such as would have
required the filing of a certificate under any of the provisions of the General
Corporation Law of Delaware, if such action had been voted upon by the
shareholders at a meeting thereof, the certificate filed under such provision
shall state that written consent has been given under Section 228 of said
General Corporation Law, in lieu of stating that the shareholders have voted
upon the corporate action in question, if such last mentioned statement is
required thereby.
2.8 Proxy Representation. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, objecting to
or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the shareholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of shareholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
2.9 Inspectors. The directors or the person presiding at the meeting may,
but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.10 List of Stockholders. The secretary shall prepare and make, at least
ten days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each shareholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
SECTION 3. BOARD OF DIRECTORS
3.1 Number. Subject to the provisions of the certificate of incorporation
from time to time in effect, the number of directors which shall constitute the
whole board shall be thirteen. The number of directors which shall constitute
the whole board may be increased or decreased at any time or from time to time
by the board of directors or the shareholders as provided in these by-laws. If
from time to time the holders of any outstanding preferred stock or series
thereof, pursuant to the terms of such preferred stock, receive the right to
elect one or more additional directors to the board due to any default by the
corporation in the payment of dividends thereon, the number of directors which
shall constitute the whole board shall increase by such
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number, and if such right of the preferred shareholders shall terminate, the
number of directors shall reduce by such number. Directors need not be
shareholders. The shareholders at the annual meeting shall elect the number of
directors as determined in accordance with these by-laws.
3.2 Tenure. Except as otherwise provided by law, by the certificate of
incorporation or by these by-laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
3.3 Powers. The business and affairs of the corporation shall be managed by
or under the direction of the board of directors who shall have and may exercise
all the powers of the corporation and do all such lawful acts and things as are
not by law, the certificate of incorporation or these by-laws directed or
required to be exercised or done by the shareholders.
3.4 Nominations; Vacancies.
(a) For a period of three years after the "Effective Time" (as such term is
defined in the Prospectus included in the Registration Statement of Form S-4
which the corporation will file with the Securities and Exchange Commission, and
all amendments thereto), the board of directors of the corporation shall consist
of four Seaway Designees, four Rini Designees, three Rego Designees and two
Independent Designees. As of the Effective Time, the Seaway Designees shall be
Michael L. Borstein, Philip M. Sanson, David J. Lombardi and Brian K. Garson,
the Rini Designees shall be Charles A. Rini, Sr., Anthony Rini, Anthony J.
Collura, Jr. and S. Lee Kohrman, the Rego Designees shall be Anthony C. Rego,
Thomas A. Rego and Joseph E. Crimaldi, and the Independent Designees shall be
Robert H. Kanner and William G. Miller.
(b) For a period of three years after the Effective Time, vacancies created
by the death, resignation or removal of a director, if not filled by vote of the
shareholders, shall be filled as follows: a vacancy among the Seaway Designees
shall be filled by vote of a majority of the remaining Seaway Designees; a
vacancy among the Rini Designees shall be filled by vote of a majority of the
remaining Rini Designees; a vacancy among the Rego Designees shall be filled by
vote of a majority of the remaining Rego Designees; and a vacancy among the
Independent Designees shall be filled by not less than a 61% vote of the
remaining directors.
(c) For a period of three years after the Effective Time, in connection
with any election of directors at an annual or special meeting of shareholders
or by written consent of the shareholders, the corporation shall nominate
persons for election to the board of directors as follows: a majority of the
Seaway Designees then in office shall select four nominees to be the Seaway
Designees; a majority of the Rini Designees then in office shall select four
nominees to be the Rini Designees; a majority of the Rego Designees then in
office shall select three nominees to be the Rego Designees; and the nominees to
be the Independent Designees shall be selected by not less than a 61% vote of
the directors then in office.
(d) Except as provided in paragraph (b) of this Section, subject to the
provisions of the certificate of incorporation, vacancies and any newly created
directorships resulting from any increase in the number of directors may be
filled by vote of the shareholders at a meeting called for that purpose, or by
not less than a 61% vote of the directors then in office.
(e) Except as provided in paragraph (b) of this Section, subject to the
provisions of the certificate of incorporation, when one or more directors shall
resign from the board, effective at a future date, not less than 61% of the
directors then in office, including those who have resigned, shall have power to
fill such vacancy or vacancies, the vote or action by writing thereon to take
effect when such resignation or resignations shall become effective. The
directors shall have and may exercise all their powers notwithstanding the
existence of one or more vacancies in their number, subject to any requirements
of law or of the certificate of incorpora-
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tion or of these by-laws as to the number of directors required for a quorum or
for any vote or other actions or of these by-laws as to the number of directors
required.
3.5 Committees. The board of directors may, by vote of a majority of the
whole board, (a) designate, change the membership of or terminate the existence
of any committee or committees, each committee to consist of one or more of the
directors; (b) designate one or more directors as alternate members of any such
committee who may replace any absent or disqualified member at any meeting of
the committee; and (c) determine the extent to which each such committee shall
have and may exercise the powers of the board of directors in the management of
the business and affairs of the corporation, including the power to authorize
the seal of the corporation to be affixed to all papers which require it and the
power and authority to declare dividends or to authorize the issuance of stock;
excepting, however, such powers which by law, by the certificate of
incorporation or by these by-laws they are prohibited from so delegating. In the
absence or disqualification of any member of such committee and his alternate,
if any, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting 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. Except as the board of
directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the board or such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these by-laws for the conduct of business by the board of directors.
Each committee shall keep regular minutes of its meetings and report the same to
the board of directors upon request.
3.6 Regular Meetings. Regular meetings of the board of directors may be
held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of shareholders.
3.7 Special Meetings. Special meetings of the board of directors may be
held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board or a co-chairman of the board, if any, the president, or by one-third or
more in number of the directors, reasonable notice thereof being given to each
director by the secretary or by the chairman of the board, if any, the president
or any one of the directors calling the meeting.
3.8 Notice. It shall be reasonable and sufficient notice to a director to
send notice by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting addressed to him at his usual or last known
business or residence address or to give notice to him in person or by telephone
at least twenty-four hours before the meeting. Notice of a meeting need not be
given to any director if a written waiver of notice, executed by him before or
after the meeting, is filed with the records of the meeting, or to any director
who attends the meeting without protesting prior thereto or at its commencement
the lack of notice to him. Neither notice of a meeting nor a waiver of a notice
need specify the purposes of the meeting.
3.9 Quorum. Except as may be otherwise provided by law, by the certificate
of incorporation or by these by-laws, at any meeting of the directors, at least
61% of the directors then in office shall constitute a quorum. Any meeting may
be adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
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3.10 Action by Vote. Except as may be otherwise provided by law, by the
certificate of incorporation or by these bylaws, when a quorum is present at any
meeting the vote of not less than 61% of the directors then in office shall be
the act of the board of directors.
For a period of three years after the Effective Time (as such term is
defined in the Prospectus included in the Registration Statement on Form S-4
which the corporation will file with the Securities and Exchange Commission, and
all amendments thereto), except as may be otherwise required by law or the
certificate of incorporation, the board of directors shall not, without approval
by the affirmative vote of not less than 76% of the directors then in office:
(1) Increase or decrease the number of directors which shall
constitute the entire board of directors;
(2) Remove from the board of directors any of the directors who are
not Independent Designees (the "Initial Directors"), except for cause;
(3) Terminate the employment of any of the executive officers of the
corporation as of the Effective Time (the "Initial Executive Officers"),
except for cause;
(4) Increase or decrease the salary, fringe benefits or other
compensation, or award any bonus, to any Initial Director or Initial
Executive Officer of the corporation;
(5) Authorize the issuance of any Class B Common Stock except in
connection with a Stock Dividend (as defined in the certificate of
incorporation); or
(6) Amend, modify or repeal, or adopt any provision inconsistent with,
any provision of this Section 3, "BOARD OF DIRECTORS," or of Section 2.6 of
these by-laws.
If the percentage of directors required by these by-laws to take any action
is not a whole number of directors, then the number of directors required to
take such action shall be the next highest whole number of directors in excess
of such percentage.
The board of directors may remove an Initial Director or terminate an
Initial Executive Officer "for cause" only if the board of directors reasonably
determines that (i) there has been on the part of such person gross negligence,
substantial and continuing non-performance or a substantial and continuing
inability to perform his duties to the corporation, (ii) such person has
committed an act of willful misconduct or fraud related to the performance of
his duties to the corporation; (iii) such person has commited a felony under any
federal or state law while serving as a director or executive officer of the
corporation, or (iv) such person is bankrupt or insolvent.
In the event the employment of an Initial Executive Officer is terminated
by the board of directors pursuant to this Section 3.10, other than for cause,
such person shall continue to receive the salary and other compensation which
such person was entitled to receive prior to such termination for the remainder
of the period ending three years after the Effective Time, as hereinabove
defined.
3.11 Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the board of directors or a committee thereof may be taken
without a meeting if all the members of the board or of such committee, as the
case may be, consent thereto in writing, and such writing or writings are filed
with the records of the meetings of the board or of such committee. Such consent
shall be treated for all purposes as the act of the board or of such committee,
as the case may be.
3.12 Participation in Meetings by Conference Telephone. Members of the
board of directors, or any committee designated by such board, 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 or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
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3.13 Compensation. In the discretion of the board of directors, each
director may be paid such fees for his services as director and be reimbursed
for his reasonable expenses incurred in the performance of his duties as
director as the board of directors from time to time may determine. Nothing
contained in this section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.14 Interested Directors and Officers.
(a) No contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of the
corporation's directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of directors,
a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
3.15 Director Liability, Indemnification and Insurance.
(a) Limitation of Liability of Directors. No director shall have any
personal liability to the corporation or any shareholder for monetary damages
for breach of fiduciary duty as a director, except that this Section shall not
eliminate or limit the liability of each director (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law. Any repeal or modification of this Section
shall be prospective only, and shall not adversely affect any limitation on the
liability of a director of the Corporation existing at the time of such repeal
or modification.
(b) Indemnification and Insurance.
(1) Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of
the fact that he or she, or a person of whom he or she is the legal
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representative, is or was a director or officer of the Corporation or any
Subsidiary of the corporation (as defined in the certificate of
incorporation) (either before or after it became a Subsidiary of the
corporation) or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans (a "director or officer"), whether the basis of such
proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer,
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 (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, ERISA excise taxes or
penalties 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 or officer
and shall inure to the benefit of his or her heirs, executors,
administrators and assignees; provided, however, that, except as provided
in paragraph (b)(2) hereof, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and
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 payment of such expenses incurred by a director or officer in his or
her 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) in advance of the final disposition of a proceeding 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 or otherwise. The corporation may, by
action of its board of directors, provide indemnification to any employees
and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(2) Right of Claimant to Bring Suit. If a claim under paragraph (b)(l)
of this Section 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 against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also 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 its shareholders) 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 its shareholders) 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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(3) Non-Exclusivity of Rights. The rights conferred in this Section to
any person shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the certificate
of incorporation, by-law, agreement, or vote of the shareholders, board of
directors or disinterested directors or otherwise.
(4) Insurance. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the corporation would have the power to indemnify such person against
such expense, liability or loss under this Section, the certificate of
incorporation or the Delaware General Corporation Law.
(5) Continuation of Indemnity. As used in these bylaws, reference to
"the corporation" shall include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its directors and officers, so that any person who is or was a director or
officer of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director or officer of another
corporation, partnership, joint venture, trust, or other enterprise, shall
stand in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(6) Severability. If these by-laws or any portion hereof shall be
invalidated or held to be unenforceable on any ground by any court of
competent jurisdiction, then the corporation shall nevertheless indemnify
each director and officer of the corporation as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with
respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including a grand jury proceeding and an
action by the corporation, to the fullest extent permitted by any
applicable portion of this Section that shall not have been invalidated or
held unenforceable by any other applicable law.
SECTION 4. OFFICERS AND AGENTS
4.1 Enumeration; Qualification. The officers of the corporation shall be a
president, a treasurer, a secretary and such other officers, if any, as the
board of directors from time to time may in its discretion elect or appoint
including without limitation one or more co-chairmen of the board, one or more
vice presidents and a controller. The corporation may also have such agents, if
any, as the board of directors from time to time may in its discretion choose.
Any officer may be but none need be a director or shareholder. Any two or more
offices may be held by the same person. Any officer may be required by the board
of directors to secure the faithful performance of his duties to the corporation
by giving bond in such amount and with sureties or otherwise as the board of
directors may determine.
4.2 Powers. Subject to law, to the certificate of incorporation and to the
other provisions of these by-laws, each officer shall have, in addition to the
duties and powers herein set forth, such duties and powers as are commonly
incident to his office and such additional duties and powers as the board of
directors may from time to time designate.
4.3 Elections. The officers may be elected by the board of directors at
their first meeting following the annual meeting of the shareholders or at any
other time. At any time or from time to time the directors may delegate to any
officer their power to elect or appoint any other officer or any agents.
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4.4 Tenure. Each officer shall hold office until the first meeting of the
board of directors following the next annual meeting of the shareholders and
until his respective successor is chosen and qualified unless a shorter period
shall have been specified by the terms of his election or appointment, or in
each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5 Chairman of the Board of Directors, President and Vice President. The
chairman of the board or a co-chairman of the board, if any, shall have such
duties and powers as shall be designated from time to time by the board of
directors. Unless the board of directors otherwise specifies, the chairman of
the board or a co-chairman of the board, or if there is none the chief operating
officer, shall preside, or designate the person who shall preside, at all
meetings of the shareholders and of the board of directors.
Unless the board of directors otherwise specifies, the president shall be
the chief operating officer and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
Any vice presidents shall have such duties and powers as shall be set forth
in these by-laws or as shall be designated from time to time by the board of
directors or by the president.
4.6 Treasurer and Assistant Treasurers. The treasurer shall be the chief
financial officer of the corporation and shall be in charge of its funds and
valuable papers, and shall have such other duties and powers as may be
designated from time to time by the board of directors or by the president. If
no controller is elected, the treasurer shall also have the duties and powers of
the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7 Controller and Assistant Controllers. If a controller is elected, he
shall be the chief accounting officer of the corporation and shall be in charge
of its books of account and accounting records, and of its accounting
procedures. He shall have such other duties and powers as may be designated from
time to time by the board of directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the president, the
treasurer or the controller.
4.8 Secretary and Assistant Secretaries. The secretary shall record all
proceedings of the shareholders, of the board of directors and of committees of
the board of directors in a book or series of books to be kept therefor and
shall file therein all actions by written consent of shareholders or directors.
In the absence of the secretary from any meeting, an assistant secretary, or if
there be none or he is absent, a temporary secretary chosen at the meeting,
shall record the proceedings thereof. Unless a transfer agent has been appointed
the secretary shall keep or cause to be kept the stock and transfer records of
the corporation, which shall contain the names and record addresses of all
shareholders and the number of shares registered in the name of each
shareholder. He shall have such other duties and powers as may from time to time
be designated by the board of directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
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SECTION 5. RESIGNATIONS AND REMOVALS
5.1 Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president, or
the secretary or to a meeting of the board of directors. Such resignation shall
be effective upon receipt unless specified to be effective at some other time,
and without in either case the necessity of its being accepted unless the
resignation shall so state. A director may be removed from office as provided in
these by-laws. Except as otherwise required by these by-laws, the board of
directors may at any time remove any officer either with or without cause.
Except as otherwise required by these by-laws, the board of directors may at any
time terminate or modify the authority of any agent. Except as otherwise
required by these by-laws, no director or officer resigning and (except where a
right to receive compensation shall be expressly provided in a duly authorized
written agreement with the corporation) no director or officer removed shall
have any right to any compensation as such director or officer for any period
following his resignation or removal, or any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless, in the case of a resignation, the directors, or, in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
SECTION 6. VACANCIES
6.1 If the office of the president, the treasurer or the secretary becomes
vacant, the directors may elect a successor by a vote as provided by these
by-laws. If the office of any other officer becomes vacant, any person or body
empowered to elect or appoint that officer may choose a successor. Each such
successor shall hold office for the unexpired term, and in the case of the
president, the treasurer and the secretary until his successor is chosen and
qualified or in each case until he sooner dies, resigns, is removed or becomes
disqualified. Any vacancy of a directorship shall be filled as specified in
Section 3.4 of these by-laws.
SECTION 7. CAPITAL STOCK
7.1 Stock Certificates. Each shareholder shall be entitled to a certificate
stating the number and the class and the designation of the series, if any, of
the shares held by him, in such form as shall, in conformity to law, the
certificate of incorporation and the by-laws, be prescribed from time to time by
the board of directors. Such certificate shall be signed by the chairman or vice
chairman of the board, if any, or the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of or all the signatures on the certificate may be a facsimile.
In case an officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent, or registrar at the time of its issue.
7.2 Loss of Certificates. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
SECTION 8. TRANSFER OF SHARES OF STOCK
8.1 Transfer on Books. Subject to the restrictions, if any, stated or noted
on the stock certificate, shares of stock may be transferred on the books of the
corporation by the surrender to the corporation or its transfer agent of the
certificate therefor properly endorsed or accompanied by a written assignment
and power of attorney properly executed, with necessary transfer stamps affixed,
and with such proof of the authenticity of signature as the board of directors
or the transfer agent of the corporation may reasonably require. Except as may
be otherwise required by law, by the certificate of incorporation or by these
by-laws, the corpora-
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tion shall be entitled to treat the record holder of stock as shown on its books
as the owner of such stock for all purposes, including the payment of dividends
and the right to receive notice and to vote or to give any consent with respect
thereto and to be held liable for such calls and assessments, if any, as may
lawfully be made thereon, regardless of any transfer, pledge or other
disposition of such stock until the shares have been properly transferred on the
books of the corporation.
It shall be the duty of each shareholder to notify the corporation of his
post office address.
8.2 Record Date and Closing Transfer Books. In order that the corporation
may determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty days nor less than
ten days (or such longer period as may be required by law) before the date of
such meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(a) The record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(b) The record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(c) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders 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.
SECTION 9. CORPORATE SEAL
9.1 Subject to alteration by the directors, the seal of the corporation
shall consist of a flat-faced circular die with the word "Delaware" and the name
of the corporation cut or engraved thereon, together with such other words,
dates or images as may be approved from time to time by the directors.
SECTION 10. EXECUTION OF PAPERS
10.1 Except as the board of directors may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed by the chairman of the
board or any co-chairman of the board, if any, the president, a vice president
or the treasurer.
SECTION 11. FISCAL YEAR
11.1 The fiscal year of the corporation shall end on the 30th day of June
in each year.
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SECTION 12. AMENDMENTS
12.1 These by-laws may be adopted, amended or repealed by the board of
directors or by vote of the shareholders as provided in these by-laws. Subject
to the previous sentence, any by-law, whether adopted, amended or repealed by
the shareholders or directors, may be amended or reinstated by the shareholders
or the directors.
SECTION 13. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
13.1 Section 203 of the General Corporation Law of Delaware does not apply
to "business combinations with interested stockholders" of the corporation; for
the purpose of this section, the definition of the term "business combinations
with interested stockholders" is found in Section 203 of the General Corporation
Law of Delaware.
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