EXHIBIT 3.ii
Adopted: October 23, 1980
Amended: June 27, 1983
Amended: December 16, 1986
Amended: April 13, 1988
Amended: June 30, 1988
Amended: February 14, 1990
Amended: December 12, 1990
Amended: February 16, 1991
Amended: June 30, 1992
Amended: October 9, 1998
Amended: August 14, 2002
RESTATED BYLAWS
OF
SUPERVALU INC.
Table of Contents
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Page
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ARTICLE I. Offices, Corporate Seal 1
Section 1.01. Registered Office 1
Section 1.02. Corporate Seal 1
ARTICLE II. Meetings of Stockholders 1
Section 2.01. Place and Time of Meetings 1
Section 2.02. Annual Meetings 1
Section 2.03. Special Meetings 1
Section 2.04. Quorum, Adjourned Meetings 1
Section 2.05. Organization 2
Section 2.06. Order of Business 2
Section 2.07. Voting 2
Section 2.08. Inspectors of Election 3
Section 2.09. Notices of Meetings and Consents 3
Section 2.10. Proxies 3
Section 2.11. Waiver of Notice 4
Section 2.12. Stockholder List 4
Section 2.13. Fixing Date for Determination of Stockholders of Record 4
Section 2.14. Stockholder Action by Written Consent 4
Section 2.15. Notice of Stockholder Business and Nominations 5
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ARTICLE III. Board of Directors 7
Section 3.01. General Powers 7
Section 3.02. Number, Election and Term of Office 7
Section 3.03. Annual Meeting 8
Section 3.04. Regular Meetings 8
Section 3.05. Special Meetings 9
Section 3.06. Notice of Meetings 9
Section 3.07. Waiver of Notice 9
Section 3.08. Quorum 9
Section 3.09. Removal 9
Section 3.10. Committees of Directors 9
Section 3.11. Written Action 10
Section 3.12. Compensation 10
Section 3.13. Conference Communications 10
ARTICLE IV. Standing Committees 10
Section 4.01. Standing Committees 10
Section 4.02. Executive Committee 11
Section 4.03. Executive Personnel and Compensation Committee 11
Section 4.04. Finance Committee 11
Section 4.05. Audit Committee 11
Section 4.06. Director Affairs Committee 12
ARTICLE V. Officers 12
Section 5.01. Number 12
Section 5.02. Election, Term of Office and Qualifications 12
Section 5.03. Removal and Vacancies 12
Section 5.04. Chairman and Vice Chairman of the Board 12
Section 5.05. President 13
Section 5.06. Chief Executive Officer 13
Section 5.07. Chief Operating Officer 13
Section 5.08. Vice Presidents 13
Section 5.09. President Pro Tem 13
Section 5.10. Secretary 13
Section 5.11. Treasurer 14
Section 5.12. Controller 14
Section 5.13. Counsel 14
Section 5.14. Duties of Other Officers 14
Section 5.15. Authority to Execute Agreements 14
Section 5.16. Duties of Officers May be Delegated 14
Section 5.17 Compensation 15
ARTICLE VI. Shares and Their Transfer 15
Section 6.01. Certificates for Stock 15
Section 6.02. Issuance of Stock 15
Section 6.03. Partly Paid Stock 15
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Section 6.04. Transfer of Stock 16
Section 6.05. Facsimile Signatures 16
ARTICLE VII. Dividends, Surplus, Etc. 16
Section 7.01. Dividends 16
Section 7.02. Use of Surplus, Reserve 16
ARTICLE VIII. Books and Records, Audit, Fiscal Year 16
Section 8.01. Books and Records 16
Section 8.02. Audit 17
Section 8.03. Fiscal Year 17
ARTICLE IX. Indemnification 17
Section 9.01. Statutory Indemnification 17
Section 9.02. Additional Indemnification 17
Section 9.03. Procedure for Indemnification 18
Section 9.04. Non-Exclusive 18
Section 9.05. Subsidiary Corporations 19
ARTICLE X. Miscellaneous 19
Section 10.01. Periods of Time 19
Section 10.02. Voting Securities Held by the Corporation 19
Section 10.03. Purchase and Sale of Securities 19
ARTICLE XI. Amendments 19
Section 11.01. 19
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RESTATED BYLAWS
OF
SUPERVALU INC.
ARTICLE I.
Offices, Corporate Seal
Section 1.01. Registered Office. The registered office of the
corporation in Delaware shall be at 100 West Tenth Street, Wilmington, Delaware,
and the resident agent in charge thereof shall be The Corporation Trust Company.
Section 1.02. Corporate Seal. The corporate seal shall be circular in
form and have inscribed thereon, the name of the corporation, the year of its
incorporation (1925), and the word "Delaware."
ARTICLE II.
Meetings of Stockholders
Section 2.01. Place and Time of Meetings. Meetings of the stockholders
may be held at such place and at such time as may be designated by the Board of
Directors. In the absence of a designation of place, meetings shall be held at
the principal executive office of the corporation. In the absence of a
designation of time, the meetings shall be held at 10:00 a.m. local time at the
place where the meeting is to be held. Any previously scheduled annual or
special meeting of the stockholders may be postponed by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled for
such meeting.
Section 2.02. Annual Meetings. The annual meeting of the stockholders
of the corporation for the election of directors and for the transaction of any
other proper business shall be held at such date, time and place as may be fixed
by resolution of the Board of Directors.
Section 2.03. Special Meetings. Special meetings of the stockholders
for any purpose or purposes shall be called only by the Secretary (but only at
the written request of a majority of the total number of directors), the
Chairman of the Board or the President. Stockholders shall have no power or
right to call special meetings. The call of any special meeting shall state the
purpose or purposes of the meeting. Business transacted at any special meeting
shall be limited to the purposes stated in the call of such meeting.
Section 2.04. Quorum, Adjourned Meetings. The holders of a majority of
the shares outstanding and entitled to vote shall constitute a quorum for the
transaction of business at any annual or special meeting. If a quorum is not
present at a meeting, those present shall adjourn to such day as they shall
agree upon by majority vote; provided, however, that any annual or special
meeting of stockholders, whether or not a
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quorum is present, may be adjourned from time to time by the Chairman of the
meeting. Notice of any adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken. At
adjourned meetings, any business may be transacted which might have been
transacted at the meeting as originally noticed. If a quorum is present, the
stockholders may continue to transact business until adjournment notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
Section 2.05. Organization. At each meeting of the stockholders, the
Chairman of the Board or his delegate shall act as Chairman; in the event the
Chairman is absent and he has not designated a Chairman, the Vice Chairman of
the Board shall act as Chairman, or the Vice Chairman of the Board shall
designate a Chairman; in the event the Vice Chairman of the Board is also absent
and has not designated a Chairman, the President shall act as Chairman, or the
President shall designate a Chairman; and the Secretary of the corporation or in
his absence an Assistant Secretary or in his absence any person whom the
Chairman of the meeting shall appoint shall act as Secretary of the meeting.
Section 2.06. Order of Business. The order of business at all meetings
of the stockholders shall be determined by the Chairman of the meeting. The
Chairman of the meeting shall convene and adjourn the meeting and determine and
announce the times at which the polls shall be opened and closed at the meeting.
Section 2.07. Voting. Except as may be provided in a resolution or
resolutions of the Board of Directors establishing a series of Preferred Stock,
and except as may be otherwise provided in the Certificate of Incorporation of
the corporation, each stockholder of the corporation entitled to vote at a
meeting of stockholders shall have one vote in person or by written proxy for
each share of stock having voting rights held by him and registered in his name
on the books of the corporation. Upon the request of any stockholder, the vote
upon any question before a meeting shall be by written ballot, and all elections
of directors shall be by written ballot. All questions at a meeting shall be
decided by a majority vote of the number of shares entitled to vote represented
at the meeting at the time of the vote except where otherwise required by
statute, the Certificate of Incorporation or these Bylaws.
Persons holding stock in fiduciary capacity shall be entitled to vote
the shares so held. Unless the Secretary of the corporation has been furnished
with a copy of governing instruments or orders which would cause other rules to
be applicable, the following rules shall govern the voting of shares standing of
record in the names of two or more persons (whether joint tenants, tenants in
common, tenants by the entirety, fiduciaries, members of a partnership, or
otherwise) or shares held in a fiduciary capacity in which two or more persons
have the same fiduciary relationship respecting such shares:
(i) if only one person shall vote, his act shall bind all;
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(ii) if more than one person shall vote, the act of the majority
voting shall bind all;
(iii) if more than one person shall vote, but the votes shall be
evenly split on any particular matter, then, except as
otherwise provided by statute, each fraction may vote the
shares in question proportionately.
Section 2.08. Inspectors of Election. For each meeting of the
stockholders, the Chairman of such meeting shall appoint one or more inspectors
of election to act. Each inspector of election so appointed shall first
subscribe an oath or affirmation to execute the duties of an inspector of
election at such meeting with strict impartiality and according to the best of
his ability. Such inspectors of election, if any, shall take charge of the
ballots at such meeting and after the balloting on any question shall count the
ballots and shall make a report in writing to the Secretary of such meeting of
the results thereof. An inspector of election need not be a stockholder of the
corporation, and any officer or employee of the corporation may be an inspector
of election on any question other than a vote for or against his election to any
position with the corporation or on any other question in which he may be
directly interested.
Section 2.09. Notices of Meetings and Consents. Every stockholder may
furnish the Secretary of the corporation with an address at which notices of
meetings and all other corporate communications may be served on or mailed to
him. In the absence of such address, the address on the corporate share registry
maintained by the transfer agent shall be sufficient for purposes of the
hereinafter described notice. Except as otherwise provided by the Certificate of
Incorporation or by statute, a written notice of each annual or special meeting
of stockholders shall be given not less than 10 nor more than 60 days before the
date of such meeting to each stockholder of record of the corporation entitled
to vote at such meeting by delivering such notice of meeting to him personally
or depositing the same in the United States mail, postage prepaid, directed to
him at the post office address as provided above. Service of notice is complete
upon mailing. Personal delivery to any officer of a corporation or association
or to any member of a partnership is delivery to such corporation, association
or partnership. Every notice of a meeting of stockholders shall state the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called.
Section 2.10. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or consent to corporate action without a meeting may authorize
another person or persons to act for him by proxy by an instrument executed in
writing. If any such instrument designates two or more persons to act as
proxies, a majority of such persons present at the meeting, or, if only one
shall be present, then that one shall have and may exercise all of the powers
conferred by such written instrument upon all of the persons so designated
unless the instrument shall otherwise provide.
Section 2.11. Waiver of Notice. Notice of any annual or special meeting
may be waived either before, at or after such meeting in writing signed by the
person or persons entitled to the notice. Attendance of a person at a meeting
shall constitute a waiver of
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notice of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting to the transacting of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of any regular or special meeting
of the stockholders need be specified in any written waiver of notice.
Section 2.12. Stockholder List. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Section 2.13. Fixing Date for Determination of Stockholders of Record.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action (other than the expression of consent to corporate action in
writing without a meeting of stockholders), the Board of Directors shall fix, in
advance, a record date, which may not be more than 60 or not less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action.
(b) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 2.14. Stockholder Action by Written Consent. In order that the
corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been fixed by
the Board of Directors within 10 days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or any officer
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or agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the corporation's
registered office shall be by hand or certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such prior action.
Section 2.15. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (A) pursuant to the Corporation's notice of meeting, (B) by or
at the direction of the Board of Directors or (C) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this Section 2.15, who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 2.15.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(1) of this Section 2.15, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must be a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 120th day nor
earlier than the close of business on the 150th day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 150th
day prior to such annual meeting and not later than the close of business on the
later of the 120th day prior to such annual meeting or the 10th day following
the day on which public announcement of the date of such meeting is first made.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (A) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (B) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the
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beneficial owner, if any, on whose behalf the proposal is made; and (C) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 2.15 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increase Board of Directors made by the
Corporation at least 100 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this Section 2.15
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (A) by or at the direction of the Board of
Directors or (B) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 2.15, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 2.15. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(2) of this Section 2.15 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
(c) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 2.15 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.15. Except as otherwise provided by law, the
Chairman of the meeting shall have the
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power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made, or proposed, as the case may be, in
accordance with the procedures set forth in this Section 2.15 and, if any
proposed nomination or business is not in compliance with this Section 2.15, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.15, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.15, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.15. Nothing in this Section 2.15 shall be
deemed to affect any rights of (i) stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) the holders of any series of Preferred Stock to elect
directors under specified circumstances.
ARTICLE III.
Board of Directors
Section 3.01. General Powers. The business of the corporation shall be
managed by or under the direction of the Board of Directors. The Board of
Directors may delegate its authority, subject to its reasonable supervision, to
any committee, officer or agent and grant the power to sub-delegate.
Section 3.02. Number, Election and Term of Office.
(a) The Board of Directors currently consists of 14 members and the
number of directors may be increased or decreased from time to time by
resolution of a majority of the whole Board of Directors or of the holders of at
least 75% of the stock of the corporation entitled to vote, considered for the
purpose as one class. Except as otherwise provided by law or by these Bylaws,
the directors of the corporation shall be elected at the Annual Meeting of
stockholders in each year.
The directors of the corporation shall be divided into three classes
with the number of directors fixed by or in accordance with the Bylaws divided
equally so far as possible among the three classes. At each annual election of
directors after the 1976 Annual Meeting of Stockholders, the successors to the
directors of each class whose term shall expire in that year shall be elected to
hold office for a term of three years from the date of their election and until
their successors shall be duly elected and qualified. In case of any increase or
decrease in the number of directors, the increase or decrease shall be
distributed among the several classes as nearly equal as possible, as shall be
determined by the affirmative vote of a majority of the whole Board or by the
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holders of at least 75% of the stock of the corporation entitled to vote,
considered as one class.
(b) Vacancies: Newly Created Directorships - If the office of any
director becomes vacant at any time by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, or if any new directorship
is created by any increase in the authorized number of directors, a majority of
the directors then in office, although less than a quorum, or the sole remaining
director, may choose a successor to fill the newly created directorship, and the
director so chosen shall hold office subject to the provisions of these Bylaws,
until the next Annual Meeting of Stockholders or until his or her successor
shall have been elected and qualified. At such next Annual Meeting the
stockholders shall elect a director to fill the balance of the unexpired term of
the director whose place was originally vacated or the term established by the
Board pursuant to subsection (a) above.
(c) Amendment - Notwithstanding Article XI of these Bylaws, no
provision of this Section 3.02 may be amended or rescinded except by the
affirmative vote of the holders of at least 75% of the stock of the corporation
entitled to vote, considered for the purpose as one class, or by a majority of
the whole Board of Directors.
(d) [Intentionally omitted]
(e) Notwithstanding any other provision of these Bylaws, the Board of
Directors may nominate William E. C. Dearden for reelection to the Board of
Directors at the 1991 Annual Meeting of Stockholders for a term of two years.
Upon Mr. Dearden's ceasing to be a director of the corporation, this Section
3.02(e) shall have no further force and effect and shall be deleted from these
Bylaws.
Section 3.03. Annual Meeting. As soon as practicable after each annual
election of directors, the Board of Directors shall meet at the same place as
the annual meeting of shareholders or at the principal executive office of the
corporation, or at such other place previously designated by the Board of
Directors, for the purpose of electing the officers of the corporation and for
the transaction of such other business as may come before the meeting.
Section 3.04. Regular Meetings. Regular meetings of the Board of
Directors shall be held from time to time at such time and place as may be fixed
by resolution adopted by a majority of the total number of directors.
Section 3.05. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, or by any
two of the directors and shall be held from time to time at such time and place
as may be designated in the notice of such meeting.
Section 3.06. Notice of Meetings. No notice need be given of any annual
or regular meeting of the Board of Directors. Notice of each special meeting of
the Board
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of Directors shall be given by the Secretary who shall give at least three (3)
days' notice thereof by mail or at least twenty-four (24) hours' notice thereof
to each director by telephone, telegram or in person. Notice shall be effective
upon dispatch of a letter or telegram (properly addressed to the director) or
upon delivery of written or telephoned notice to a person at the regular
business or residence address of the director even if such notice is not
personally received by the director.
Section 3.07. Waiver of Notice. Notice of any meeting of the Board of
Directors may be waived either before, at or after such meeting in writing
signed by each director so waiving notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purposes of 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 regular or special meeting of the directors need be specified in any
written waiver of notice.
Section 3.08. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless these Bylaws require a greater number.
Section 3.09. Removal. Any director may be removed from office at any
meeting of the stockholders, but only for cause. If one or more directors be so
removed, new director(s) may be elected at the same meeting.
Section 3.10. Committees of Directors.
(a) The Board of Directors may, by resolution adopted by a majority of
the total number of directors, designate one or more committees in addition to
the committees established pursuant to Article IV of these Bylaws, each to
consist of one or more of the directors of the corporation, which, to the extent
provided in the resolution, may exercise the powers of the Board of Directors in
management of the business and affairs of the corporation and may authorize the
corporate seal to be affixed to all papers that may require it. The Board of
Directors shall elect the directors to serve on each Committee and may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined by the resolution
adopted by the directors. The chairman of each committee shall act as secretary
of the meeting and prepare minutes of proceedings where formal action is taken
by the committee, and each committee shall report their actions and
recommendations to the Board of Directors when required.
(b) The provisions of Section 3.06 through 3.08 of these Bylaws with
respect to notices of meetings and quorums shall also be applicable to meetings
of committees, except as otherwise provided in the Bylaws or resolutions
establishing a particular
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committee. Special meetings of any committee shall be called at the request of
any member or by the President or Chairman of the Board.
Section 3.11. Written Action. Any action required or permitted to be
taken at a meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all directors or committee members consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee. Such action shall be deemed to have been
taken upon the effective date appearing in said writing, notwithstanding the
fact that some or all of the directors may have signed on a date other than the
effective date.
Section 3.12. Compensation. Directors who are not salaried officers of
this corporation may receive such fixed sum per Board or Committee meeting
attended or fixed annual sum and such other forms of compensation as may be
determined by resolution of the Board of Directors. All directors shall receive
their expenses, if any, of attendance at meetings of the Board of Directors or
any committee thereof. Any director may serve the corporation in any other
capacity and receive proper compensation therefor.
Section 3.13. Conference Communications. Directors may participate in
any meeting of the Board of Directors, or of any duly constituted committee
thereof, by means of a conference telephone conversation or other comparable
communication technique whereby all persons participating in the meeting can
hear and communicate to each other. For the purposes of establishing a quorum
and taking any action at the meeting, such directors participating pursuant to
this Section 3.13 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
ARTICLE IV.
Standing Committees
Section 4.01. Standing Committees. The corporation shall have such
standing committees of the Board of Directors as are provided in Article IV of
these Bylaws. The Chairman of each standing committee shall be appointed by vote
of a majority of the whole Board of Directors. The provisions of Section 3.10 of
the Bylaws shall govern all standing committees, except as may be otherwise
provided in the Bylaw establishing the committee. Each standing committee shall
perform the duties specified in these Bylaws and shall have such other
responsibilities and authority as may from time to time be assigned by the Board
of Directors.
Section 4.02. Executive Committee.
(a) Between sessions of the Board of Directors, the Executive Committee
shall have, and may exercise, all of the powers of the Board of Directors in the
management and affairs of the corporation, including the power to authorize the
seal of
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the corporation to be affixed to all papers which may require it, except the
Executive Committee shall have no power or authority to (i) adopt an agreement
of merger or consolidation, (ii) recommend to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's property and
assets, (iii) recommend to the stockholders a dissolution of the corporation or
revocation of a dissolution, or (iv) amend the Certificate of Incorporation or
the Bylaws of the corporation. The Executive Committee shall have the power and
authority to declare a dividend and to authorize the issuance of stock.
(b) At least one member of the Executive Committee shall be a director
of the corporation who is not an employee and no meeting of the Committee shall
be deemed to have a quorum unless at least one such member is present. Action by
the Executive Committee may be taken only by the unanimous vote of the members
present at a meeting in which a quorum is present. The chief executive officer
shall be a member of the Executive Committee and shall preside at its meetings
in the absence of its Chairman.
Section 4.03. Executive Personnel and Compensation Committee. The
Executive Personnel and Compensation Committee shall provide a general review of
the corporation's compensation and benefit plans to insure they meet corporate
objectives. It shall perform such duties and responsibilities as may from time
to time be assigned to it by the Board of Directors. All members of the
Committee shall be directors who are not employees of the corporation.
Section 4.04. Finance Committee. The Finance Committee shall act in an
advisory capacity and make its recommendations to the management of the
corporation and to the Board of Directors on corporate fiscal matters. It shall
perform such duties and responsibilities as may from time to time be assigned to
it by the Board of Directors.
Section 4.05. Audit Committee.
(a) The Audit Committee shall recommend to the whole Board of Directors
the selection of independent certified public accountants to audit annually the
books and records of this corporation and shall review the activities and the
reports of the independent certified public accountants and shall report the
results of such review to the whole Board of Directors. The Audit Committee
shall also monitor the internal audit controls of the corporation.
(b) The Audit Committee shall be comprised solely of directors
independent of management and free from any relationship that, in the opinion of
the Board of Directors, would interfere with the exercise of independent
judgment as a Committee member.
Section 4.06. Director Affairs Committee. The Director Affairs
Committee shall review and make its recommendations to the whole Board of
Directors regarding
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nominations of persons to serve on the Board of Directors, and shall have such
other duties and responsibilities as may from time to time be assigned to it by
the Board of Directors.
ARTICLE V.
Officers
Section 5.01. Number. The officers of the corporation shall consist of
a Chairman of the Board, a President, a Treasurer and a Secretary, and, if
elected, such additional officers as described in this Article V. The Board of
Directors shall designate whether the Chairman of the Board or the President is
to be the Chief Executive Officer of the corporation. The directors may
designate one or more regional or divisional Presidents and Vice Presidents who
shall not be officers of this corporation. Any person may hold two or more
offices except President and Vice President.
Section 5.02. Election, Term of Office and Qualifications. At each
annual meeting of the Board of Directors, all officers, from within or without
their number, shall be elected; however, the Board may elect additional officers
at any Board meeting. Such officers shall hold office until the next annual
meeting of the directors or until their successors are elected and qualified or
until such office is eliminated by a vote of the majority of all directors.
Section 5.03. Removal and Vacancies. Any officer may be removed from
his office by a majority vote of the total number of directors with or without
cause. A vacancy among the officers by death, resignation, removal, or otherwise
may be filled for the unexpired term by the Board of Directors.
Section 5.04. Chairman and Vice Chairman of the Board.
(a) The Chairman of the Board shall preside at all meetings of the
directors and shall have such other duties as may be prescribed, from time to
time, by the Board of Directors.
(b) In the absence of the Chairman of the Board, the Vice Chairman of
the Board shall preside at all meetings of the directors, and shall have such
other duties as from time to time may be assigned by the Board of Directors.
Section 5.05. President. The President shall be the Chief Operating
Officer of the corporation. He shall have such duties as may, from time to time
be prescribed by the Board of Directors or be delegated by the Chief Executive
Officer. In the absence of the Chairman of the Board and the Vice Chairman of
the Board, or if a Chairman of the Board and Vice Chairman of the Board shall
not have been elected, the President shall preside at all meetings of the
directors.
Section 5.06. Chief Executive Officer. The Chief Executive Officer
shall be either the Chairman of the Board or the President of the corporation.
He shall be the principal
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executive officer of the corporation and shall be responsible for the general
management, direction and control of all of the business and affairs of the
corporation. He shall have such other authority and duties as the Board of
Directors may prescribe. The Chief Executive Officer shall report to the Board
of Directors and be responsible to them.
Section 5.07. Chief Operating Officer. The Chief Operating Officer
shall be the President. He shall be responsible for the daily operations of the
corporation's business and shall have such other authority and duties as the
Board of Directors or the Chief Executive Officer may prescribe. He shall report
to the Chief Executive Officer if the Chief Executive Officer is not also
serving as the Chief Operating Officer.
Section 5.08. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties as may be prescribed by the Board of
Directors or by the Chief Executive Officer. The following categories of Vice
Presidents may be elected by the Board of Directors:
(i) Executive Vice Presidents
(ii) Senior Vice Presidents
(iii) Vice Presidents including Group Vice Presidents
Section 5.09. President Pro Tem. In the absence or disability of the
President, the Board of Directors may appoint a President Pro Tem who shall have
all the powers and duties of the President and shall serve during the aforesaid
absence or disability.
Section 5.10. Secretary. The Secretary shall be secretary of and shall
attend all meetings of the stockholders and the Board of Directors and shall
record the proceedings of such meetings in the minute book of the corporation.
He shall give proper notice of meetings of stockholders and Board of Directors.
He shall keep the seal of the corporation. He shall perform such other duties as
may from time to time be prescribed by the Board of Directors or by the
President or the Chairman.
Section 5.11. Treasurer. The Treasurer or his delegate shall keep
accurate accounts of all moneys of the corporation received or disbursed. He
shall have power to endorse for deposit all notes, checks and drafts received by
the corporation. He shall disburse the funds of the corporation as ordered by
the directors, making proper vouchers therefor. He shall render to the President
and the Board of Directors whenever required an account of all his transactions
as Treasurer and of the financial condition of the corporation and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors or by the President or the Chairman.
Section 5.12. Controller. The duties of the Controller shall be to
maintain adequate records and books of account and control of all assets,
liabilities and transactions of this corporation; to see that adequate audits
thereof are currently and
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regularly made; and, in conjunction with other officers and department heads, to
initiate and enforce adequate accounting measures and procedures. He shall
perform such other duties as the Board of Directors may from time to time
prescribe or require. His duties and powers shall extend to all subsidiary
corporations.
Section 5.13. Counsel. The Counsel shall be the legal adviser of the
corporation and shall receive such salary for his services as the Board of
Directors may fix.
Section 5.14. Duties of Other Officers. Assistant Vice Presidents,
Assistant Secretaries, and Assistant Treasurers elected by the Board of
Directors shall have the power and authority and may perform all the duties of a
Vice President, the Secretary, or the Treasurer, respectively. The duties of
such other officers and agents as the Board of Directors may designate shall be
set forth in the resolution creating such office or by subsequent resolution.
Section 5.15. Authority to Execute Agreements. The Chairman of the
Board, Vice Chairman of the Board, President, Executive Vice Presidents, Senior
Vice Presidents, Vice Presidents and Group Vice Presidents are hereby authorized
to execute or cause to be executed in the name and on behalf of this
corporation, all contracts, agreements, deeds, mortgages, bonds, options,
leases, lease and other guarantees of the obligations of others, including
subsidiary corporations and customers, stock transfer documents, and such other
instruments as may be necessary or desirable in the conduct of the business of
the corporation; and said officers are further authorized to sign and affix, or
cause to be signed and affixed, the seal of the corporation on any instrument
requiring the same, which seal shall be attested by the signature of the
Secretary, the Treasurer, any Assistant Secretary or any Assistant Treasurer.
Section 5.16. Duties of Officers May be Delegated. In the case of the
absence or disability of any officer of the corporation or for any other reason
deemed sufficient by the Board of Directors, it may delegate his powers or
duties to any other officer or to any director during such absence or
disability.
Section 5.17. Compensation. The officers of the corporation shall
receive such compensation for their services as may be determined from time to
time by resolution of the Board of Directors or by one or more committees to the
extent so authorized from time to time by the Board of Directors.
ARTICLE VI.
Shares and Their Transfer
Section 6.01. Certificates for Stock. Every holder of shares in the
corporation shall be entitled to a certificate, to be in such form as shall be
prescribed by the Board of Directors, certifying the number and class of shares
of the corporation owned by him. The certificates for such shares shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the corporation by the Chairman of the
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Board, the President or a Vice President, and by the Secretary or an Assistant
Secretary and the seal of the corporation shall be affixed thereto. Every
certificate surrendered to the corporation for exchange or transfer shall be
cancelled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such certificate shall have been so
cancelled, except in cases provided for in Section 6. 05.
Section 6. 02. Issuance of Stock. The Board of Directors is authorized
to cause to be issued shares of the corporation up to the full amount authorized
by the Certificate of Incorporation in such amounts and for such consideration
as may be determined by the Board of Directors.
Section 6. 03. Partly Paid Stock. The corporation may issue the whole
or any part of its stock as partly paid and subject to call for the remainder of
the consideration to be paid therefor. Upon the face or back of each certificate
issued to represent any such partly paid stock, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid stock, the corporation shall
declare a dividend upon partly paid stock of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon. The Board of
Directors may, from time to time, demand payment, in respect of each share of
stock not fully paid, of such sum of money as the necessities of the business
may, in the judgment of the Board of Directors, require, not exceeding in the
whole the balance remaining unpaid on such stock, and such sum so demanded shall
be paid to the corporation at such times and by such installments as the
directors shall direct. The directors shall give written notice of the time and
place of such payments, which notice shall be mailed at least 30 days before the
time for such payment, to each holder of or subscriber for stock which is not
fully paid at his last known post office address or his last known address on
the stock registry.
Section 6.04. Transfer of Stock. Transfer of stock on the books of the
corporation may be authorized only by the stockholder named in the certificate,
the stockholder's legal representative or the stockholder's duly authorized
attorney-in-fact and upon surrender of the certificate or the certificates for
such stock. The corporation may treat as the absolute owner of stock of the
corporation the person or persons in whose name stock is registered on the books
of the corporation. The Board of Directors may appoint one or more transfer
agents, who shall keep the stock ledger and transfer book for the transfer of
stock of the corporation, and one or more registrars, and may require all
certificates of stock to bear the signature of such transfer agents and of such
registrars.
Section 6.05. Facsimile Signatures. Whenever any certificate is
countersigned by a transfer agent or by a registrar other than the corporation
or its employee, then the signatures of the officers or agents of the
corporation may be a facsimile. Where a certificate is to bear the signature of
a transfer agent and a registrar, the signature of one, but not both, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on any such certificate
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shall cease to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation as though the person
who signed such certificate or whose facsimile signature or signatures had been
placed thereon were such officer, transfer agent or registrar at the date of
issue.
ARTICLE VII.
Dividends, Surplus, Etc.
Section 7.01. Dividends. The Board of Directors may declare dividends
on its capital stock from the corporation's surplus, or if there be none, out of
its net profits for the current fiscal year, and/or the preceding fiscal year in
such amounts as in its opinion the condition of the affairs of the corporation
shall render it advisable unless otherwise restricted by law.
Section 7.02. Use of Surplus, Reserve. The Board of Directors may use
any of the corporation's property or funds, unless such would cause an
impairment of capital, in purchasing any of the stock, bonds, debentures, notes,
scrip or other securities or evidences of indebtedness of the corporation. The
Board of Directors may from time to time set aside from corporate surplus or net
profits such sums as it deems proper as a reserve fund for any purpose.
ARTICLE VIII.
Books and Records, Audit, Fiscal Year
Section 8.01. Books and Records. The Board of Directors of the
corporation shall cause to be kept: (a) a share ledger which shall be in charge
of the Secretary; (b) records of the proceedings of stockholders and directors:
and (c) such other records and books of account as shall be necessary and
appropriate to the conduct of the corporate business.
Section 8.02. Audit. The Board of Directors shall cause the records and
books of account of the corporation to be audited at least once for each fiscal
year and at such other times as it may deem necessary or appropriate.
Section 8.03. Fiscal Year. The fiscal year of the corporation shall end
on the last Saturday in February of each year.
ARTICLE IX.
Indemnification
Section 9.01. Statutory Indemnification. The corporation shall
indemnify any director or officer of the corporation and may indemnify any
employee or agent of the corporation in the discretion of the Board of Directors
for such liabilities in such manner under such circumstances and to such extent
as permitted by Section 145 of the Delaware General Corporation Law or its
successor, as now enacted or hereafter amended.
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Section 9.02. Additional Indemnification. In addition to that
authorized in Section 9.01 herein, the corporation shall indemnify as follows:
(a) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding (even if such wrongful act arose out of neglect or
breach of duty not involving willful misconduct), so long as he did not act out
of personal profit or advantage which was undisclosed to the corporation and he
acted in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, including amounts paid in settlement, (even if such wrongful act
arose out of neglect or breach of duty not involving willful misconduct), so
long as he did not act out of personal profit or advantage which was undisclosed
to the corporation and he acted in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation.
Section 9.03. Procedure for Indemnification.
(a) The corporation shall be required to make a determination that
indemnification under this Article is proper in the circumstances because the
person being indemnified has met the applicable standards of conduct set forth
in this Article. Such determination shall be made, with respect to a person who
is a director or officer at the time of such determination, (1) by a majority
vote of the directors who are not parties to the action, suit or proceeding,
even though less than a quorum, (2) by a committee of such directors designated
by a majority vote of such directors, even
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though less than a quorum, (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders of the corporation. If a court orders indemnification of the
officer or director, no such outside determination is necessary.
(b) Expenses incurred by any person who shall have a right of
indemnification under this Article in defending a civil or criminal action, suit
or proceeding shall be paid by the corporation in advance of the final
disposition of such action provided that a determination has not been made by
independent legal counsel (who may be the regular counsel for the corporation)
in a written opinion that it is reasonably likely that the person has not met
the applicable standards of conduct for indemnification and provided that the
corporation has received an undertaking by or on behalf of the person to repay
such expenses unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation pursuant to this Article.
Section 9.04. Non-Exclusive.
(a) The indemnification provided by this Article is in addition to and
independent of and shall not be deemed exclusive of any other rights to which
any person may be entitled under any agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person; provided that any indemnification realized other than under this Article
shall apply as a credit against any indemnification provided by this Article.
(b) The corporation may provide indemnification under this Article to
any employee or agent of the corporation or of any other corporation of which
the corporation owns or controls or at the time owned or controlled directly or
indirectly a majority of the shares of stock entitled to vote for election of
directors or to any director, officer, employee or agent of any other
corporation, partnership, joint venture, trust or other enterprise in which the
corporation has or at the time had an interest as an owner, creditor or
otherwise, if and whenever the Board of Directors of the corporation deems it in
the best interest of the corporation to do so.
(c) The corporation may, to the fullest extent permitted by applicable
law from time to time in effect, indemnify any and all persons whom the
corporation shall have power to indemnify under said law from and against any
and all of the expenses, liabilities or other matters referred to in or covered
by said law, if and whenever the Board of Directors of the corporation deems it
to be in the best interest of the corporation to do so.
Section 9.05. Subsidiary Corporations. For purposes of this Article and
indemnification hereunder, any person who is or was a director or officer of any
other corporation of which the corporation owns or controls or at the time owned
or controlled
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directly or indirectly a majority of the shares of stock entitled to vote for
election of directors of such other corporation shall be conclusively presumed
to be serving or to have served as such director or officer at the request of
the corporation.
ARTICLE X.
Miscellaneous
Section 10.01. Periods of Time. During any period of time prescribed by
these Bylaws, the date from which the designated period of time begins to run
shall not be included, and the last day of the period so computed shall be
included.
Section 10.02. Voting Securities Held by the Corporation. Unless
otherwise ordered by the Board of Directors, the Chief Executive Officer shall
have full power and authority on behalf of the corporation (a) to attend and to
vote at any meeting of security holders of other corporations in which the
corporation may hold securities; (b) to execute any proxy for such meeting on
behalf of the corporation; or (c) to execute a written action in lieu of a
meeting of such other corporation on behalf of the corporation. At such meeting,
by such proxy or by such writing in lieu of meeting, the Chief Executive Officer
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities that the corporation might have possessed and
exercised if it had been present. The Board of Directors may, from time to time,
confer like powers upon any other person or persons.
Section 10.03. Purchase and Sale of Securities. Unless otherwise
ordered by the Board of Directors, the Chief Executive Officer shall have full
power and authority on behalf of the corporation to purchase, sell, transfer or
encumber any and all securities of any other corporation owned by the
corporation and may execute and deliver such documents as may be necessary to
effectuate such purchase, sale, transfer or encumbrance. The Board of Directors
may, from time to time, confer like powers upon any other person or persons.
ARTICLE XI.
Amendments
Section 11.01. These Bylaws may be amended, altered or repealed at any
meeting of the directors by a vote of the majority of the whole Board of
Directors or at any meeting of the shareholders at which a quorum, as defined in
Article II, Section 2.04 of these Bylaws, is present by the vote of a majority
of the shares voting at the meeting.
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