EXHIBIT 3.3
BYLAWS
OF
S & D FOODS, INC.
ARTICLE I
OFFICES
1. PRINCIPAL OFFICES. The Board of Directors shall fix the location of the
principal executive office of the corporation at any place within or outside the
State of California. If the principal executive office is located outside this
state, and the corporation has one or more business offices in this state, the
Board of Directors shall fix and designate a principal business office in the
State of California.
1. OTHER OFFICES. The Board of Directors may at any time establish branch
or subordinate offices at any place or places.
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any place
within or outside the State of California designated by the Board of Directors
or by the written consent of all persons entitled to vote thereat, given either
before or after the meeting and filed with the Secretary of the corporation. In
the absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
1. ANNUAL MEETING. The annual meeting of share-holders shall be held on the
15th day of July in each year at 10:00 a.m. or such other date or such other
time as may be fixed by the Board; provided, however, if this day falls on a
Saturday, Sunday, or legal holiday, then the meeting shall be held at the same
time and place on the next succeeding full business day. Any date so fixed by
the Board shall be within sixty (60) days after the date designated above. At
this meeting, directors shall be elected, and any other proper business may be
transacted which is within the powers of the shareholders.
1. SPECIAL MEETING. A special meeting of the share-holders may be called at
any time by the Board of Directors, or by the Chairman of the Board, or by the
President, or by one or more shareholders holding shares in the aggregate
entitled to cast not fewer than 10% of the votes at that meeting.
If a special meeting is called by any person or persons entitled to call a
special meeting of the shareholders other than the Board of Directors, the
request shall be in writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the Chairman of the Board, the President, any Vice President, or
the Secretary of the corporation. The officer receiving the request shall cause
notice to be promptly given to the shareholders entitled to vote, in accordance
with the pro-visions of Sections 4 and 5 of this Article II, that a meeting will
be held at the time requested by the person or persons calling the meeting, not
fewer than thirty-five (35) nor more than sixty (60) days after the receipt of
the request. If the notice is not given within twenty (20) days after receipt of
the request, the person or persons requesting the meeting may give the notice.
Nothing contained in this paragraph of this Section 3 shall be construed as
limiting, fixing or affecting the time when a meeting of shareholders called by
action of the Board of Directors may be held.
1. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be sent or otherwise given to each shareholder entitled to
vote thereat in accordance with Section 5 of this Article II not fewer than ten
(10) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be transacted and no
other business may be transacted, or (ii) in the case of the annual meeting,
those matters which the Board of Directors, at the time of giving the notice,
intends to present for action by the shareholders, but subject to the provisions
of Section 601(f) of the Corporations Code of California, any proper matter may
be presented at the meeting for such action. The notice of any meeting at which
directors are to be elected shall include the name of any nominee or nominees
whom, at the time of the notice, management intends to present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the Articles of Incorporation, pursuant to Section 902 of that
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of that Code, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of
that Code, the notice shall also state the general nature of that proposal.
1. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of
shareholders shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by
first-class mail or telegraphic or other written communication to the
corporation's principal executive office, or if published at least once in a
newspaper of general circulation in the county where that office is located.
Notice shall be deemed to have been given at the time when delivered personally
or deposited in the mail or sent by telegram or other means of written
communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the corporation is returned to the corporation by the
United States Postal Service marked to indicate that the United States Postal
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Service is unable to deliver the notice to the shareholder at that address, all
future notices or reports shall be deemed to have been duly given without
further mailing if these shall be available to the share-holder on written
demand of the shareholder at the principal executive office of the corporation
for a period of one year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, Assistant Secretary,
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation.
1. QUORUM. The presence in person or by proxy of the holders of a majority
of the shares entitled to vote at any meeting of shareholders shall constitute a
quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
1. ADJOURNED MEETING; NOTICE THEREOF. Any share-holders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of the majority of the shares represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the Board of Directors shall set a new record
date. If the adjournment is for more than forty-five (45) days, or if a new
record date is fixed for the adjourned meeting, then notice of any such
adjourned meeting shall be given to each shareholder of record entitled to vote
at the adjourned meeting in accordance with the provisions of Sections 4 and 5
of this Article II. At any adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting.
1. VOTING. The shareholders entitled to vote at any meeting of shareholders
shall be determined in accordance with the provisions of Section 11 of this
Article II, subject to the pro-visions of Section 702 to 704, inclusive, of the
Corporations Code of California (relating to voting shares held by a fiduciary,
in the name of a corporation, or in joint ownership). The share-holders' vote
may be by voice vote or by ballot; provided, however, that any election for
directors must be by ballot if demanded by any shareholder before the voting has
begun. On any matter other than elections of directors, any shareholder may vote
part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the shareholder
fails to specify the number of shares which the shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares that the shareholder is entitled to vote. If
a quorum is present, the affirmative vote of the majority of the shares
3.
represented at the meeting and entitled to vote on any matter (other than the
election of directors) shall be the act of the shareholders, unless the vote of
a greater number or voting by classes is required by California General
Corporation Law or by the Articles of Incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the number of the shareholder's
shares) unless the candidate or candidates' names have been placed in nomination
prior to commencement of the voting and a shareholder has given notice prior to
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which that shareholder's shares are entitled, or distribute the
shareholder's votes on the same principle among any or all of the candidates, as
the shareholder thinks fit. The candidates receiving the highest number of
votes, up to the number of directors to be elected, shall be elected.
1. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of
any meeting of shareholders, either annual or special, however called and
noticed, and wherever held, shall be valid as though had at a meeting duly held
after regular call and notice, if a quorum be present either in person or by
proxy, and if, either before or after the meeting, each person entitled to vote,
who was not present in person or by proxy, signs a written waiver of notice or a
consent to a holding of the meeting, or an approval of the minutes. 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 shareholders, except that if
action is taken or proposed to be taken for approval of any of those matters
specified in the second paragraph of Section 4 of this Article II, the waiver of
notice or consent shall state the general nature of the proposal. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that 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
included in the notice of the meeting but not so included if that objection is
expressly made at the meeting.
1. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
which may be taken at any annual or special meeting of shareholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the action so taken, is signed by the holders of outstanding shares having
not fewer than the minimum number of votes that would be necessary to authorize
or take that action at a meeting at which all shares entitled to vote on that
action were present and voted. In the case of election of directors, such a
consent shall be effective only if signed by the holders of all outstanding
shares entitled to vote for the election of directors; provided however, that a
director may be elected at any time to fill a vacancy on the Board of Directors,
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other than a vacancy created by removal, that has not been filled by the
directors, by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of directors. All such
consents shall be filed with the Secretary of the corporation and shall be
maintained in the corporate records. Any shareholder giving a written consent,
or the shareholder's proxy holders, or a transferee of the shares or a personal
representative of the shareholder or their respective proxy holders, may revoke
the consent by a writing received by the corporation before consents of the
number of shares required to authorize the proposed action have been filed with
the Secretary of the corporation.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting,
to those shareholders entitled to vote who have not consented in writing. This
notice shall be given in the manner specified in Section 5 of this Article II.
In the case of approval of (i) contracts or transactions in which a director has
a direct or indirect financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Code, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of that Code, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
1. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING CONSENTS. For the
purposes of determining the shareholders entitled to notice of any meeting or to
vote or entitled to give consent to corporate action without a meeting, the
Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor fewer than ten (10) days before the date of any such
meeting nor more than sixty (60) days before any such action without a meeting,
and in this event only shareholders of record on the date so fixed are entitled
to notice and to vote or to give consents, as the case may be, notwithstanding
any transfer of any shares on the books of the corporation after the record
date, except as otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to notice or
to vote at a meeting of shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held.
(a) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the sixtieth (60) day before the date of such other
action, whichever is later.
5.
1. PROXIES. Every person entitled to vote for directors or on any matter
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the Secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewritten, telegraphic
transmission, or otherwise) by the shareholder or the shareholder's attorney in
fact. A validly executed proxy which does not state that it is irrevocable shall
continue in full force and effect unless (i) revoked by the person executing it,
before the vote pursuant to that proxy, by a writing delivered to 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; or (ii) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote pursuant to that proxy
is counted; provided, however, that no proxy shall be valid after the expiration
of eleven (11) months from the date of the proxy, unless otherwise provided in
the proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of
the Corporation Code of California.
1. INSPECTORS OF ELECTION. Before any meeting of shareholders, the Board of
Directors may appoint any persons other than nominees for office to act as
inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any shareholder or a shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy, shall appoint a person to
fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and the
authenticity, validity, and effect of proxies.
(a) Receive votes, ballots, or consents:
(a) Hear and determine all challenges and questions in any way arising
in connection with
the right to vote;
(a) Count and tabulate all votes or consents;
(g) Determine when the polls shall close;
(a) Determine the result; and
6.
(a) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
If there are three inspectors of election, the decision, act or certificate
of a majority is effective in all respects as the decision, act or certificate
of all.
ARTICLE III
DIRECTORS
1. POWERS. Subject to the provisions of the California General Corporation
Law and any limitations in the Articles of Incorporation and these bylaws
relating to action required to be approved by the shareholders or by the
outstanding shares, 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 of Directors. Without prejudice to these general powers, and subject to
the same limitations, the directors shall have the power to:
(j) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the Articles of Incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(j) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or without the State of
California; and designate any place within or without the State of California
for the holding of any shareholders' meeting, or meetings, including annual
meetings.
(j) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(j) Authorize the issuance of shares of stock of the corporation on
any lawful terms and for such consideration as may be lawful.
(j) Borrow money and incur indebtedness on behalf of the corporation,
and cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, and other evidences of debt and securities.
(j) Conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law, or with the Articles or these bylaws, as they may deem best.
1. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of
directors shall be two (2) until changed by a duly adopted amendment to the
Articles of Incorporation or by an amendment to this bylaw duly adopted by the
shareholders; provided, however, that an amendment reducing the number of
7.
directors to a number fewer than five (5) cannot be adopted if the votes cast
against its adoption at a meeting, or the shares not consenting in the case of
action by written consent, are equal to more than 16-2/3% of the outstanding
shares entitled to vote.
1. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be elected at
each annual meeting of the share-holders to hold office until the next annual
meeting. Each director, including a director elected to fill a vacancy, shall
hold office until the expiration of the terms for which elected and until a
successor has been elected and qualified.
1. VACANCIES. Except for a vacancy created by the removal of a director,
vacancies in the Board of Directors may be filled by approval of the Board, or,
if the number of directors then in office is less than a quorum, by (a) the
unanimous written consent of the directors then in office, (b) the affirmative
vote of a majority of directors then in office, at a meeting held pursuant to
notice or waivers of notice, or (c) a sole remaining director. A vacancy created
by the removal of a director by the vote or written consent of the shareholders
or by court order may be filled only by the vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a quorum is
present, or by the unanimous written consent of all of the outstanding shares
entitled to vote for the election of directors. Each director so elected shall
hold office until the next annual meeting of the share-holders and until a
successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
in the event of the death, resignation, or removal of any director, or if the
Board of Directors by resolution declares vacant the office of a director who
has been declared of unsound mind by an order of court or convicted of a felony,
or if the authorized number of directors is increased, or if the share-holders
fail, at any meeting of shareholders at which any director or directors are
elected, to elect the number of directors to be voted for at that meeting.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any director may resign effective on giving written notice to the Chairman
of the Board, the President, the Secretary, or the Board of Directors, unless
the notice specifies a later time for that resignation to become effective. If
the resignation of a director is effective at a future time, the Board of
Directors may elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires.
1. PLACE OF MEETING AND MEETINGS BY TELEPHONE. Regular meetings of the
Board of Directors may be held at any place within or outside the State of
California that has been designated from time to time by resolution of the
board. In the absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special meetings of the board
8.
shall be held at any place within or outside the State of California that has
been designated in the notice of the meeting or, if not stated in the notice or
there is no notice, at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone, or similar
communication equipment, so long as all directors participating in the meeting
can hear one another, and all such directors shall be deemed to be present in
person at the meeting.
1. ANNUAL MEETING. Immediately following each annual meeting of
shareholders, the Board of Directors shall hold a regular meeting for the
purpose of organization, any desired election of officers, and the transaction
of other business. Notice of this meeting shall not be required.
1. OTHER REGULAR MEETINGS. Other regular meetings of the Board of Directors
shall be held without call at such time and place as shall from time to time be
fixed by the Board of Directors. Such regular meetings may be held without
notice.
1. SPECIAL MEETINGS. Special meetings of the Board of Directors for any
purpose or purposes may be called at any time by the Chairman of the Board or
the President or any Vice President or the Secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegrams, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. In case the notice is
mailed, it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. In case the notice is delivered
personally or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the corporation.
1. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article III. 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 shall be regarded as the act of the Board of Directors, subject to
the provisions of Section 310 of the Corporations Code of California (as to
approval of contracts or transactions in which a director has a direct or
indirect material financial interest), Section 311 of that Code (as to
appointment of commit-tees), and Section 317(e) of that Code (as to
indemnification of directors). 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 that meeting.
1. WAIVER OF NOTICE. The transaction of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
9.
present signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents, and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting. Notice
of a meeting shall also be deemed given to any director who attends the meeting
without protesting before or at its commencement, the lack of notice to that
director.
1. ADJOURNMENT. A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
1. NOTICE OF ADJOURNMENT. Notice of the time and place of holding an
adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four hours, in which case notice of the time and place shall be
given before the time of the adjourned meeting, in the manner specified in
Section 8 of this Article III, to the directors who were not present at the time
of the adjournment.
1. ACTION WITHOUT MEETING. Any action required or permitted to be taken by
the Board of Directors may be taken without a meeting, if all members of the
board shall individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a unanimous
vote of the Board of Directors. Such written consent or consents shall be filed
with the minutes of the proceedings of the board.
1. FEES AND COMPENSATION OF DIRECTORS. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
Board of Directors. This Section 14 shall not be construed to preclude any
director from servicing the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for those services.
ARTICLE IV
COMMITTEES
1. COMMITTEES OF DIRECTORS. The Board of Directors 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. The board may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. Any committee, to the extent provided in the
resolution of the board, shall have all the authority of the board, except with
respect to:
(p) the approval of any action which, under the General Corporation
Law of California, also requires shareholders' approval or approval of the
outstanding shares;
(p) the filling of vacancies on the Board of Directors or in any
committee;
10.
(p) the fixing of compensation of the directors for serving on the
board or on any committee;
(p) the amendment or repeal of bylaws or the adoption of new bylaws;
(p) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not so amendable or repealable;
(p) a distribution to the shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the Board of
Directors.
(p) the appointment of any other committees of the Board of Directors
or the members of these committees.
1. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of committees
shall be governed by, and held and taken in accordance with, the provisions of
Article III of these bylaws, Sections 5 (place of meetings), 7 (regular
meetings), 8 (special meetings and notice), 9 (quorum), 10 (waiver of notice),
11 (adjournment), 12 (notice of adjournment), and 13 (action without meeting),
with such changes in the context of those bylaws as are necessary to substitute
the committee and its members for the Board of Directors and its members, except
that the time of regular meetings of committees may be determined either by
resolution of the Board of Directors or by resolution of the committee; special
meetings of committees may also be called by resolution of the Board of
Directors; 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 of Directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
1. OFFICERS. The officers of the corporation shall be a President, a
Secretary, and a Treasurer (Chief Financial Officer). The corporation may also
have at the discretion of the Board of Directors, a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers as may be appointed in accordance
with provisions of Section 3 of this Article V. Any number of offices may be
held by the same person.
1. ELECTION OF OFFICERS. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article V, shall be chosen by the Board of Directors, and each
shall serve at the pleasure of the board subject to the rights, if any, of an
officer under any contract of employment.
1. SUBORDINATE OFFICERS. The Board of Directors may appoint, and may
empower the President to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the bylaws or as the
Board of Directors may from time to time determine.
11.
1. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of
an officer under any contract of employment, any officer may be removed, either
with or without cause, by the Board of Directors at any regular or special
meeting of the board or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
1. VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these bylaws for regular appointments to that office.
1. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be
elected, shall, if present, preside at meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by the bylaws. If there
is no President, the Chairman of the Board shall in addition be the chief
executive officer of the corporation and shall have the powers and duties
prescribed in Section 7 of this Article V.
1. PRESIDENT. Subject to such supervisory powers, if any, as may be given
by the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the chief executive officer of the corporation
and shall, subject to the control of the Board of Directors, have general
super-vision, direction, and control of the business and the officers of the
corporation. He shall preside at all meetings of the share-holders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall have the general powers and duties of
management usually vested in the office of the President of a corporation, and
shall have such other powers and duties as may be prescribed by the Board of
Directors or the bylaws.
1. VICE PRESIDENTS. In the absence or disability of the President, the Vice
Presidents, if any, in order of their rank as fixed by the Board of Directors
or, if not ranked, a Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of Directors
or the bylaws, and the President, or the Chairman of the Board.
1. SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of directors, committees
12.
of directors, and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at directors' meetings or committee meetings, the number of
shares present or represented at share-holders' meetings, and the proceedings.
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 one
be appointed, a record of its shareholders, showing the names of all
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same, and the number and date
of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the Board of Directors and of any committees thereof
required by the bylaws or by law to be given, and he shall keep the seal of the
corporation, if one be adopted, in safe custody, and shall have such other
powers and perform such other duties as may be prescribed by the Board of
Directors or by the bylaws.
1. TREASURER. The Treasurer is the Chief Financial Officer of the
corporation and 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 Treasurer (Chief Financial Officer) shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all of his transactions as Treasurer (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 of Directors or the bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent permitted by the California
General Corporation Law, indemnify each of its officers and directors against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact any such person is or was an agent of the corporation.
13.
ARTICLE VII
RECORDS AND REPORTS
1. 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, a record of its shareholders, giving the
names and addresses of all shareholders and the number and class of shares held
by each shareholder.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and share holdings during usual business hours on five days prior
written demand on the corporation, and (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of directors, and their share
holdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of demand.
This list shall be made available to any such shareholder by the transfer agent
on or before the later of five (5) days after the demand is received or the date
specified in the demand as the date of which the list is to be compiled. The
record of shareholders shall also be open to inspection on the written demand of
any shareholder or holder of a voting trust certificate, at any time during
usual business hours, for a purpose reasonably related to the holder's interests
as a shareholder or as the holder of a voting trust certificate. Any inspection
and copying under this Section 1 may be made in person or by an agent or
attorney of the shareholder or holder of a voting trust certificate making the
demand.
1. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep at its
principal executive office, or if its principal executive office is not in the
State of California, at its principal business office in this state, the
original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the State of
California and the corporation has no principal business office in this state,
the Secretary shall, upon the written request of any shareholder, furnish to
that share-holder a copy of the bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The
accounting books and records and minutes of proceedings of the shareholders and
the Board of Directors and any committee or committees of the Board of Directors
shall be kept at such place or places designated by the Board of Directors, or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted in to written form. The minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to the holder's interests as a
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shareholder or as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. These rights of inspection shall extend to the records
of each subsidiary corporation of the corporation.
1. 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.
1. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders
referred to in Section 1501 of the California General Corporation Law is
expressly dispensed with, but nothing herein shall be interpreted as prohibiting
the Board of Directors from issuing annual or other periodic reports to the
shareholders of the corporation as they consider appropriate.
1. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation shall, during
the applicable filing period designated by Section 1502 of the California
General Corporation Law, in each year, file with the Secretary of State of the
State of California, on the prescribed form, a statement setting forth the
authorized number of directors, the names and complete business or residence
addresses of all incumbent directors, the names and complete business or
residence addresses of the chief executive officer, Secretary, and chief
financial officer, the street address of its principal executive office or
principal business office in this state, and the general type of business
constituting the principal business activity of the corporation, together with a
designation of the agent of the corporation for the purpose of service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of
determining the shareholders 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 other lawful action (other than action by shareholders by
written consent without a meeting), the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days before any such
action, and in that case only shareholders of record on the date so fixed are
entitled to receive the dividend, distribution, or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
15.
1. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other
orders for payment of money, notes, or other evidences of indebtedness, issued
in the name of or payable to the corporation, shall be signed or endorsed by
such person or persons and in such manner as from time to time, shall be
deter-mined by resolution of the Board of Directors.
1. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of
Directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and this authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the Board of Directors or within the agency power of an officer, no
officer, agent, or employee shall have any power or authority to bind the
corporation by any contract of engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
1. CERTIFICATES FOR SHARES. A certificate or certificates for shares of the
capital stock of the corporation shall be issued to each shareholder when any of
these shares are fully paid, and the Board of Directors may authorize the
issuance of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be paid for them and
the amount paid. All certificates shall be signed in the name of the corporation
by the Chairman of the Board or Vice Chairman of the Board or the President or
Vice President and by the Chief Financial Officer or an Assistant Treasurer or
the Secretary or any Assistant Secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any or all of the
signatures on the certificate may be facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
on a certificate shall have ceased to be that officer, transfer agent, or
registrar before that certificate is issued, it may be issued by the corporation
with the same effect as if that person were an officer, transfer agent, or
registrar at the date of issue.
1. LOST CERTIFICATES. Except as provided in this Section 5, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the corporation and cancelled at the same time. The
Board of Directors may, in case any share certificate or certificate for any
other security is lost, stolen, or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
1. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of the
Board, the President, or any Vice President, or any other person authorized by
resolution of the Board of Directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority granted to these officers to vote or
represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by any of
these officers in person or by any person authorized to do so by a proxy duly
executed by these officers.
16.
1. CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the California
General Corporation Law shall govern the construction of these bylaws. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these bylaws may
be amended or repealed by the vote or written consent of holders of a majority
of the outstanding shares entitled to vote; provided, however, that if the
Articles of Incorporation of the corporation set forth the number of authorized
directors of the corporation, the authorized number of directors may be changed
only by an amendment of the Articles of Incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article IX, to adopt, amend, or
repeal bylaws, bylaws may be adopted, amended or repealed by the Board of
Directors, provided, however, that after the issuance of shares, a bylaw
specifying or changing the fixed number of directors or the maximum or minimum
number or changing from a fixed to a variable board or vice versa may only be
adopted by approval of the outstanding shares.
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, being all of the directors of S & D FOODS, INC.,
hereby assent to the foregoing bylaws and hereby adopt the same as the bylaws of
the said corporation.
IN WITNESS WHEREOF, we have subscribed our names hereto as of the 8th
day of July, 1987.
----------------------------------
DEAN E. NICHOLSON
----------------------------------
STEVE A. REEDY
ATTEST:
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17.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of S & D FOODS, INC., a
California corporation; and
2. That the foregoing bylaws, comprising 20 pages, constitute a true copy
of the original bylaws of said corporation as duly adopted at the first meeting
of the Board of Directors there-of duly held.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said corporation as of the 8th day of July 1987.
----------------------------------
Secretary
18.
Article III, Section 2, of the corporation's bylaws was amended as of
October 20, 1995, to read in full as follows:
"Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The
authorized number of directors shall be five (5) until changed by a duly adopted
amendment to the Articles of Incorporation or by an amendment to this bylaw duly
adopted by the shareholders; provided, however, that an amendment reducing the
number of directors to a number fewer than five (5) cannot be adopted if the
votes cast against its adoption at a meeting, or the shares not consenting in
the case of action by written consent, are equal to more than 16-2/3% of the
outstanding shares entitled to vote."
Article II, Section 2, of the corporation's bylaws was amended by the Board of
Directors on October 7, 1998, to read in full as follows:
Section 2. ANNUAL MEETING. The annual meeting of shareholders shall be
held on November 30 of each year at such time or on such other date as may be
fixed by the Board; provided, however, if this day falls of a Saturday, Sunday,
or legal holiday, then the meeting shall be held at the same time and place on
the next succeeding full business day. Any date so fixed by the Board shall be
within sixty (60) days of the date designated above. At this meeting, directors
shall be elected, and any other proper business may be transacted which is
within the powers of the shareholders.
19.