EXHIBIT 3.16
RESTATED BYLAWS
OF
JITNEY-JUNGLE BAKERY, INC.
ARTICLE I. PRINCIPAL OFFICE
The principal office of the corporation in the State of Mississippi shall
be located in the City of Jackson, County of Hinds. The corporation may have
such other offices, either within or without the State of Mississippi, as the
board of directors may designate or as the business of the corporation may
require from time to time.
ARTICLE II. SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the shareholders shall be
held on the third Wednesday in the month of October, in each year at the hour of
10:00 o'clock, A.M., or such other time and date as may be determined by the
directors, for the purpose of electing directors and for the transaction of such
other business as may properly come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday in the State of Mississippi, such
meeting shall be held on the next succeeding business day.
If the election of directors shall not be held on the day designated
herein for any annual meeting of the shareholders, or at any adjournment
thereof, the board of directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as conveniently may be.
SECTION 2. Special Meetings. The corporation shall hold a special meeting
of shareholders (1) on call of its board of directors or the president; or (2)
unless the articles of incorporation provide otherwise, if the holders of at
least ten percent (10%) of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting sign, date and deliver
to the corporation's secretary one or more written demands for the meeting
describing the purpose or purposes for which it is to be held. If not otherwise
fixed under applicable law, the record date for determining shareholders
entitled to demand a special meeting shall be the date the first shareholder
signs the demand.
SECTION 3. Place of Meeting. The board of directors may designate any
place, either within or without the State of Mississippi, for any annual meeting
or for any special meeting of shareholders. A valid waiver of notice signed by
all shareholders entitled to notice may designate any place, either within or
without the State of Mississippi, as the
place for any annual meeting or for any special meeting of shareholders. Unless
the notice of the meeting states otherwise, shareholders' meetings shall be held
at the corporation's principal office.
SECTION 4. Notice of Meeting. The corporation shall notify shareholders of
the date, time and place of each annual and special shareholders' meeting no
fewer than ten (10) nor more than sixty (60) days before the meeting date.
Unless applicable law or the articles of incorporation require otherwise, the
corporation shall give notice only to shareholders entitled to vote at the
meeting.
Unless applicable Law or the articles of incorporation require otherwise,
notice of an annual meeting need not include a description of the purpose or
purposes for which the meeting is called. Notice of a special meeting must
include a description of the purpose or purposes for which the meeting shall be
called. Only business within the purpose or purposes described in the meeting
notice may be conducted at a special shareholders' meeting.
Unless these bylaws require otherwise, if an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or must be fixed under applicable law or Article II,
Section 5 of these bylaws, however, notice of the adjourned meeting must be
given under this section to persons who are shareholders as of the new record
date.
SECTION 5. Closing of Transfer Books or Fixing of Record Date. The board
of directors of the corporation may fix the record date for one or more voting
groups in order to determine shareholders entitled to notice of a shareholders'
meeting, to demand a special meeting, to vote or to take any other action. A
record date may not be more than seventy (70) days before the meeting or action
requiring a determination of shareholders. If not otherwise fixed by law, the
record date for determining shareholders entitled to notice of and to vote at an
annual or special shareholders' meeting shall be the day before the first notice
is delivered to shareholders. If the board of directors does not fix the record
date for determining shareholders entitled to a distribution (other than one
involving a purchase, redemption or other acquisition of the corporation's
shares), it shall be the date the board of directors authorizes the
distribution. A determination of shareholders entitled to notice of or to vote
at a shareholders' meeting shall be effective for any adjournment of the meeting
unless the board of directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than one hundred twenty (120) days after the
date fixed for the original meeting.
SECTION 6. Voting Lists. After fixing a record date for a meeting, the
corporation shall prepare an alphabetical list of the names of all its
shareholders who are entitled to
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notice of a shareholders' meeting. The list must be arranged by voting group
(and within each voting group by class or series of shares) and show the address
of and number of shares held by each shareholder.
The shareholders' list must be available for inspection by any shareholder
beginning two (2) business days after notice of the meeting is given for which
the list was prepared and continuing through the meeting, at the corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting will be held. A shareholder, his agent or attorney shall be
entitled on written demand to inspect and, subject to the requirements of
applicable law, to copy the list during regular business hours and at his
expense, during the period it shall be available for inspection. The corporation
shall make the shareholders' list available at the meeting, and any shareholder,
his agent or attorney shall be entitled to inspect the list at any time during
the meeting or any adjournment.
SECTION 7. Quorum. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless the articles of incorporation or applicable
law impose other quorum requirements, a majority of the votes entitled to be
cast on the matter by a voting group, represented in person or by proxy, shall
constitute a quorum of that voting group for action on that matter. If less than
a majority of the outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice except as may be required by Article II, Section 4 of these
bylaws or by applicable law. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. Once a share is represented for
any purpose at a meeting, it shall be deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting.
SECTION 8. Proxies. A shareholder may appoint a proxy to vote or otherwise
act for him by signing an appointment form, either personally or by his
attorney-in-fact. An appointment of a proxy shall be effective when received by
the secretary or other officer or agent authorized to tabulate votes of the
corporation. An appointment shall be valid for eleven (11) months unless a
longer period is expressly provided in the appointment form. An appointment of a
proxy shall be revocable by the shareholder unless the appointment form
conspicuously states that it is irrevocable and the appointment shall be coupled
with an interest. Appointments coupled with an interest include the appointment
of (1) a pledgee; (2) a person who purchased or agreed to purchase the shares;
(3) a creditor of the corporation who extended it credit under terms requiring
the appointment; (4) an employee of the corporation whose employment contract
requires the appointment; or (5) a party to a voting agreement created under
applicable law.
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The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity shall be received by the secretary or other
officer or agent authorized to tabulate votes before the proxy exercises his
authority under the appointment. An appointment made irrevocable because it is
coupled with an interest shall be revoked when the interest with which it is
coupled is extinguished. A transferee for value of shares subject to an
irrevocable appointment may revoke the appointment if he did not know of its
existence when he acquired the shares and the existence of the irrevocable
appointment was not noted conspicuously on the certificate representing the
shares or on the information statement for shares without certificates.
Subject to applicable law and to any express limitation on the proxy's
authority appearing on the face of the appointment form, the corporation shall
be entitled to accept the proxy's vote or other action as that of the
shareholder making the appointment.
SECTION 9. Voting of Shares. Except as provided below or unless the
articles of incorporation provide otherwise, and subject to the provisions of
Section 12 of this Article II, each outstanding share, regardless of class,
shall be entitled to one (1) vote on each matter voted on at a shareholders'
meeting. If a quorum exists, action on a matter (other than the election of
directors) by a voting group shall be approved if the votes cast within the
voting group favoring the action exceed the votes cast opposing the action,
unless the articles of incorporation or applicable law require a greater number
of affirmative votes. Unless otherwise provided in the articles of
incorporation, directors shall be elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present.
SECTION 10. Voting of Shares by Certain Holders. Shares standing in the
name of another corporation may be voted by such officer, agent or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine.
Absent special circumstances, shares of this corporation shall not be
entitled to vote if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and this corporation owns, directly or
indirectly, a majority of the shares of the second corporation entitled to vote
for the directors of the second corporation. This does not limit the power of
this corporation to vote any shares, including its own shares, held by it in a
fiduciary capacity.
Shares held by an administrator, executor, guardian or conservator may be
voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name. Shares standing in
the name of a receiver may be voted by such
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receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
SECTION 11. Informal Action by Shareholders. Action required or permitted
by applicable law to be taken at a shareholders' meeting may be taken without a
meeting if the action is taken by all the shareholders entitled to vote on the
action. The action must be evidenced by one or more written consents describing
the action taken, signed by all the shareholders entitled to vote on the action,
and delivered to the corporation for inclusion in the minutes or filing with the
corporate records. If not otherwise determined under applicable law, the record
date for determining shareholders entitled to take action without a meeting
shall be the date the first shareholder signs such consent. A consent signed
under this section has the effect of a meeting vote and may be described as such
in any document.
If applicable law requires that notice of proposed action be given to
nonvoting shareholders and the action is to be taken by unanimous consent of the
voting shareholders, the corporation must give its nonvoting shareholders
written notice of the proposed action at least ten (10) days before the action
is taken. The notice must contain or be accompanied by the same material that,
under applicable law, would have been required to be sent to nonvoting
shareholders in a notice of meeting at which the proposed action would have been
submitted to the shareholders for action.
SECTION 12. No Cumulative Voting. Shareholders shall not have the right to
cumulate their votes for directors nor shall the shareholders be entitled to
multiply the number of votes they are entitled to cast by the number of
directors for whom they are entitled to vote and cast the product for a single
candidate or distribute the product among two (2) or more candidates.
SECTION 13. Shares Held by Nominees. The corporation may establish a
procedure by which the beneficial owner of shares that are registered in the
name of a nominee shall be recognized by the corporation as the shareholder. The
extent of this recognition may be determined in the procedure. The procedure may
set forth: (1) the types of nominees to which it applies; (2) the rights or
privileges that the corporation recognizes in a beneficial owner; (3) the manner
in which the procedure shall be selected by the nominee; (4) the information
that must be provided when the procedure is selected; (5) the period for which
selection of the procedure shall be effective; and (6) other aspects of the
rights and duties created.
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SECTION 14. Corporation's Acceptance of Votes. If the name signed on a
vote, consent, waiver or proxy appointment corresponds to the name of the
shareholder, the corporation, if acting in good faith, shall be entitled to
accept the vote, consent, waiver or proxy appointment and give it effect as the
act of the shareholder.
If the name signed on a vote, consent, waiver or proxy appointment does
not correspond to the name of its shareholder, the corporation, if acting in
good faith, shall nevertheless be entitled to accept the vote, consent, waiver
or proxy appointment and give it effect as the act of the shareholder if: (1)
the shareholder is an entity and the name signed purports to be that of an
officer or agent of the entity; (2) the name signed purports to be that of an
administrator, executor, guardian or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver or
proxy appointment; (3) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to, the corporation has been presented with
respect to the vote, consent, waiver or proxy appointment; (4) the name signed
purports to be that of a pledgee, beneficial owner or attorney-in-fact of the
shareholder and, if the corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver or proxy appointment; (5)
two (2) or more persons are the shareholders as covenants or fiduciaries and the
name signed purports to be the name of at least one (1) of the co-owners and the
person signing appears to be acting on behalf of all the co-owners.
The corporation shall be entitled to reject a vote, consent, waiver or
proxy appointment if the secretary or other officer or agent authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
ARTICLE III. BOARD OF DIRECTORS
SECTION 1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation managed
under the direction of, its board of directors, subject to any limitation set
forth in the articles of incorporation.
SECTION 2. Number, Election, Tenure and Qualifications. The number of
directors of the corporation shall consist of no less than four and no more than
twelve members, the number thereof to be determined by the directors from time
to time. Notwithstanding the foregoing, the number of directors may be increased
to more than twelve to provide for additional directors that holders of any
series or class of preferred stock are entitled to elect pursuant to the terms
thereof, as necessary. Directors are
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elected at the first annual shareholders' meeting and at each annual meeting
thereafter unless their terms are staggered in the articles of incorporation.
The terms of the initial directors of the corporation expire at the first
shareholders' meeting at which directors shall be elected. The terms of all
other directors expire at the next annual shareholders' meeting following their
election unless their terms shall be staggered in the articles of incorporation.
A decrease in the number of directors does not shorten an incumbent director's
term. The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors shall be elected. Despite the
expiration of a director's term, he continues to serve until his successor shall
be elected and qualifies or until there shall be a decrease in the number of
directors. A director need not be a resident of this state or a shareholder of
the corporation.
SECTION 3. Resignation of Directors; Removal of Directors by Shareholders.
(a) A director may resign at any time by delivering written notice to the board
of directors, to its chairman or to the corporation. A resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
(b) The shareholders may remove one or more directors with or without
cause unless the articles of incorporation provide that directors may be removed
only for cause. If a director is elected by a voting group of shareholders, only
the shareholders of that voting group may participate in the vote to remove him.
If cumulative voting is authorized, a director may not be removed if the number
of votes sufficient to elect him under cumulative voting is voted against his
removal. If cumulative voting is not authorized, a director may be removed only
if the number of votes cast to remove him exceeds the number of votes cast not
to remove him. A director may be removed by the shareholders only at a meeting
called for the purpose of removing him and the meeting notice must state that
the purpose, or one (1) of the purposes, of the meeting shall be removal of the
director.
SECTION 4. Regular Meetings. Unless the articles of incorporation or these
bylaws provide otherwise, a regular meeting of the board of directors shall be
held without other notice than this bylaw immediately after, and at the same
place as, the annual meeting of shareholders. In addition, a regular meeting of
the board of directors shall be held at least once every fiscal quarter at such
time as may be fixed by resolution of the board of directors, provided notice of
any such quarterly meeting must be preceded by at least three (3) business days
notice of the date, time and place of the meeting.
SECTION 5. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the chairperson of the board of directors
or any one (1) or more directors. Unless the articles of incorporation or these
bylaws provide for a longer or shorter period, special meetings of the board of
directors must be preceded by at least three (3) business days' notice of the
date, time and place of the meeting. If no place for the meeting has been
designated in the notice, the meeting shall be held at the principal
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SECTION 2. Election and Term of Officers. The officers of the corporation
to be elected by the board of directors shall be elected annually by the board
of directors at the regular meeting of the board of directors immediately
following the annual meeting of the shareholders. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall continue to serve until
his successor is elected and qualifies or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided.
SECTION 3. Resignation or Removal of Officers and Agents. (a) An officer
or agent may resign at any time by delivering written notice to the board of
directors, to its chairman or to the corporation. A resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
(b) Any officer or agent may be removed by the board of directors whenever
in its judgment, the best interests of the corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent shall not
of itself create contract rights.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. Chairman of the Board. The chairman of the board shall be the
chief executive officer of the corporation and must be a member of the board of
directors at the time of election to such office. When present he shall preside
at all meetings of the shareholders and of the board of directors. He may sign,
with the president and secretary or any other proper officer of the corporation
thereunto authorized by the board of directors, any deeds, mortgages, bonds,
contracts or other instruments which the board of directors has authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors or by these bylaws to some other
officer or agent of the corporation, or shall be required by law to be otherwise
signed or executed; and in general shall perform all duties incident to the
office of chairman of the board and such other duties as may be prescribed by
the board of directors from time to time.
SECTION 6. President. The president shall be the chief operating officer
of the corporation and, subject to the control of the chairman and the board of
directors, shall have general supervision and control of the business and
affairs of the corporation. In the absence of the chairman of the board of
directors, he shall, when present, preside at all meetings of the shareholders
and of the board of directors. He may sign, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by
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the board of directors or by these bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
SECTION 7. Vice President. In the absence of the president or in the event
of his death, inability or refusal to act, the vice president shall perform 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 president shall
perform such other duties as from time to time may be assigned to him by the
president or by the board of directors.
SECTION 8. Secretary. The secretary shall (a) prepare and keep the minutes
of the directors' and shareholders' meetings in one or more books provided for
that purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation and see that the seal of
the corporation is affixed to all documents the execution of which on behalf of
the corporation under its seal is duly authorized; (d) authenticate records of
the corporation; (e) keep a register of the post office address of each
shareholder which shall be furnished to the secretary by such shareholder; (f)
sign with the president, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolutions of the board of
directors; (g) have general charge of the stock transfer books of the
corporation; (h) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
SECTION 9. Treasurer. The treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the corporation; (b) receive
and give receipts for monies due and payable to the corporation from any source
whatsoever, and deposit all such monies in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with these bylaws; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the president or by the board of directors. If required by the board
of directors, the treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the board of directors
shall determine.
SECTION 10. Compensation. The board of directors may fix the compensation
of the officers. No such payment shall preclude any officer from serving the
corporation in any other capacity and receiving compensation therefor.
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ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
SECTION 4. Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, companies or other depositories as the board of directors may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Shares shall be represented by
certificates. Certificates representing shares of the corporation shall be in
such form as shall be determined by the board of directors. At a minimum, each
share certificate must state on its face (1) the name of the corporation and
that the corporation is organized under the law of the State of Mississippi; (2)
the name of the person to whom issued; and (3) the number and class of shares
and the designation of the series, if any, the certificate represents. If the
corporation is authorized to issue different classes of shares or different
series within a class, the designations, relative rights, preferences and
limitations applicable to each class and the variations in rights, preferences
and limitations determined for each series (and the authority of the board of
directors to determine variations for future series) must be summarized on the
front or back of each certificate or the corporation must furnish the
shareholder this information on request in writing and without charge.
Each share certificate must be signed (either manually or in facsimile) by
the president or a vice president and by the secretary or an assistant secretary
or by such other officers designated in the bylaws or by the board of directors
so to do, and may be sealed with the corporate seal. If the person who signed
(either manually or in facsimile) a share certificate no longer holds office
when the certificate is issued, the certificate is nevertheless valid.
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All certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in the case of a
lost, destroyed, or mutilated certificate a new one may be issued therefor upon
such terms and indemnity to the corporation as the board of directors may
prescribe.
SECTION 2. Transfer of Shares. Transfer of shares of the corporation shall
be made only on the stock transfer books of the corporation by the holder of
record thereof or by his legal representative, who shall furnish proper evidence
of authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the corporation, and on
surrender for cancellation of the certificate for such shares.
ARTICLE VII. INDEMNIFICATION
SECTION 1. Definitions. In this article:
(1) "Corporation" includes this corporation and any domestic or foreign
predecessor entity of the corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
(2) "Director" means an individual who is or was a director of the
corporation or an individual who, while a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. A director shall be
considered to be serving an employee benefit plan at the corporation's request
if his duties to the corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(5) "Official capacity" means: (i) when used with respect to a director,
the office of director in the corporation; and (ii) when used with respect to an
individual other than a director as contemplated in Article VII, Section 7, the
office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on
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behalf of the corporation. "Official Capacity" does not include service for any
other foreign or domestic corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise.
(6) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal.
SECTION 2. Authority to Indemnity. (a) Except as provided in subsection
(d), the corporation shall indemnify any individual made a party to a proceeding
because he is or was a director against liability incurred in the proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed:
(i) In the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests; and
(ii) In all other cases, that his conduct was at least not opposed
to its best interests; and
(3) In the case of any criminal proceeding, he had no reasonable cause
to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interest of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(d) The corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official
capacity,
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in which he was adjudged liable on the basis that personal benefit
was improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation shall be limited to reasonable
expenses incurred in connection with the proceeding.
SECTION 3. Mandatory Indemnification. Unless limited by the articles of
incorporation, the corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the corporation against
reasonable expenses incurred by him in connection with `the proceeding.
SECTION 4. Advance for Expenses. (a) The corporation shall pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding if:
(1) The director furnishes the corporation a written affirmation
of his good faith belief that he has met the standard of
conduct described in Article VII, Section 2;
(2) The director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay the advance if
it shall be ultimately determined that he did not meet the
standard of conduct; and
(3) A determination shall be made that the facts then known to
those making the determination would not preclude
indemnification under this Article.
(b) The undertaking required by subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
(c) Determination and authorizations of payments under this section shall
be made in the manner specified in Article VII, Section 6.
SECTION 5. Court Ordered Indemnification. Unless the corporation's
articles of incorporation provide otherwise, a director of the corporation who
is a party to a proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction.
SECTION 6. Determination and Authorization of Indemnification. (a) The
corporation may not indemnify a director under Article VII, Section 2 unless
authorized in
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the specific case after a determination has been made that indemnification of
the director shall be permissible in the circumstances because he has met the
standard of conduct set forth in Article VII, Section 2.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subsection (b)(1), by
majority vote of a committee duly designated by the board of
directors (in which designation directors who are parties may
participate), consisting solely of two (2) or more directors
not at the time parties to the proceeding;
(3) By special legal counsel:
(i) Selected by the board of directors or its committee in
the manner prescribed in subsection (b)(1) or (b)(2); or
(ii) If a quorum of the board of directors cannot be obtained
under subsection (b)(1) and a committee cannot be
designated under subsection (b)(2), selected by a
majority vote of the full board of directors (in which
selection directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification shall be permissible, except that if the determination shall be
made by special legal counsel, authorization of indemnification and evaluation
as to reasonableness of expenses shall be made by those entitled under
subsection (b)(3) to select counsel.
(d) The corporation agrees to submit requests for indemnification or
advancement of expenses to the board of directors of the corporation or to the
shareholders of the corporation, as applicable, within a reasonable time after
the director requests in writing that the corporation indemnify the director or
advance expenses to him.
SECTION 7. Indemnification of Officers, Employees and Agents. Unless the
corporation's articles of incorporation provide otherwise:
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(1) An officer of the corporation who is not a director shall be entitled
to mandatory indemnification under Article VII, Section 3, and shall be entitled
to apply for court-ordered indemnification under Article VII, Section 5, in each
case to the same extent as a director;
(2) The corporation shall indemnify and advance expenses under this
article to an officer, employee or agent of the corporation who is not a
director to the same extent as to a director; and
(3) The corporation shall also indemnify and advance expenses to an
officer, employee or agent who is not a director to the extent, consistent with
public policy, that may be provided by the articles of incorporation, bylaws,
general or specific action of the board of directors or contract.
SECTION 8. Right of Corporation to Insure. The corporation may purchase
and maintain insurance on behalf of an individual who is or was a director,
officer, employee or agent of the corporation or who, while a director, officer,
employee or agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against liability asserted against or
incurred by him in that capacity or arising from his status as a director,
officer, employee or agent, whether or not the corporation would have power to
indemnify him against such liability under Article VII, Sections 2 or 3 or
applicable law.
SECTION 9. Application of Article. (a) Unless the articles of
incorporation or these bylaws provide otherwise, any authorization of
indemnification in the articles of incorporation or these bylaws shall not be
deemed to prevent the corporation from providing the indemnity permitted or
mandated by applicable law.
(b) The board of directors of the corporation shall have power to make any
further indemnity, including advance of expenses, to and to enter contracts of
indemnity with any director, officer, employee or agent, except an indemnity
against his gross negligence or willful misconduct. Any determination as to any
further indemnity shall be made in accordance with subsection (b) of Article
VII, Section 6. Each such indemnity may continue as to a person who has ceased
to have the capacity referred to above and may inure to the benefit of the
heirs, executors and administrators of such person.
(c) The corporation shall pay or reimburse expenses incurred by a director
in connection with his appearance as a witness in a proceeding at a time when he
has not been made a named defendant or respondent to the proceeding when his
appearance as a witness is in connection with his serving as a director of the
corporation.
SECTION 10. Right to Bring Action to Enforce. The rights to
indemnification and to the advancement of expenses conferred under this article
shall be contract rights. If a
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claim under this article is not paid in full by the corporation within 90 days
after a written claim has been received by the corporation, the director making
such claim may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the director shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action that the director has not met
the standards of conduct which make it permissible under this article or the
laws of the State of Mississippi for the corporation to indemnify the director
for the amounts claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the director shall be proper in the circumstances because he has met the
applicable standard of conduct set forth under the laws of the State of
Mississippi or under this Agreement, nor an actual determination by the
corporation (including its board of directors, independent legal counsel, or its
shareholders) that the director had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the director had
not met the applicable standard of conduct.
ARTICLE VIII. NOTICE
Notice shall be in writing unless oral notice is reasonable under the
circumstances. Notice may be communicated in person; by telephone, telegraph,
teletype or other form of wire or wireless communication; or by mail or private
carrier. If these forms of personal notice shall be impracticable, notice may be
communicated by a newspaper of general circulation in the area where published;
or by radio, television or other form of public broadcast communication.
Written notice to shareholders, if in a comprehensible form, shall be
effective when mailed, if mailed postpaid and correctly addressed to the
shareholder's address shown in the corporation's current record of shareholders.
Except as provided above with respect to notice to shareholders, written
notice, if in a comprehensible form, shall be effective at the earliest of the
following:
(1) When received;
(2) Five (5) days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly addressed;
(3) On the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the addressee.
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Oral notice shall be effective when communicated if communicated in a
comprehensible manner.
If applicable law prescribes notice requirements for particular
circumstances, those requirements govern. If the articles of incorporation or
these bylaws prescribe notice requirements, not inconsistent with this section
or other provisions of applicable law, those requirements govern.
ARTICLE IX. WAIVER OF NOTICE; ASSENT TO ACTIONS
Unless otherwise provided by law, a shareholder or director of the
corporation may waive any notice required by applicable law, the articles of
incorporation or these bylaws, before or after the date and time stated in the
notice. Except as provided below, the waiver must be in writing, be signed by
the shareholder or director entitled to the notice, and delivered to the
corporation for inclusion in the minutes or filing with the corporate records.
A director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless the director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. A shareholder's attendance at a meeting (i)
waives objection to lack of notice or defective notice of the meeting unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (ii) waives objection to consideration
of a particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken shall be
deemed to have assented to the action taken unless: (1) he objects at the
beginning of the meeting (or promptly upon his arrival) to holding it or
transacting business at the meeting; (2) his dissent or abstention from the
action taken shall be entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention shall not be
available to a director who votes in favor of the action taken.
ARTICLE X. EMERGENCY BYLAWS
The emergency bylaws provided in this article shall be operative during
any emergency in the conduct of the business of the corporation, notwithstanding
any different
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provision in the preceding articles of the bylaws or in the articles of
incorporation of the corporation or in the Mississippi Business Corporation Act.
An emergency exists if a quorum of the corporation's directors cannot readily be
assembled because of some catastrophic event. To the extent not inconsistent
with the provisions of this article, the bylaws provided in the preceding
articles shall remain in effect during such emergency and upon its termination
the emergency bylaws shall cease to be operative.
During any such emergency:
(a) A meeting of the board of directors may be called by any officer or
director of the corporation. Notice of the meeting shall be given by the officer
or director calling the meeting only to those directors whom it is practicable
to reach and may be given in any practicable manner, including by publication
and radio.
(b) One or more officers of the corporation present at a meeting of the
board of directors may be deemed to be directors for the meeting, in order of
rank and within the same rank in order of seniority, as necessary to achieve a
quorum.
(c) The board of directors, either in anticipation of or during any such
emergency, may modify lines of succession to accommodate the incapacity of any
director, officer, employee or agent.
(d) The board of directors, either in anticipation of or during any such
emergency, may relocate the principal offices or regional offices, or authorize
the officers to do so.
Corporate action taken in good faith during an emergency under this
section to further the ordinary business affairs of the corporation binds the
corporation and may not be used to impose liability on a corporate director,
officer, employee or agent.
These emergency bylaws shall be subject to repeal or change by further
action of the board of directors or by action of the shareholders, but no such
repeal or change shall modify the provisions of the next preceding paragraph
with regard to action taken prior to the time of such repeal or change. Any
amendment of these emergency bylaws may make any further or different provision
that may be practical and necessary for the circumstances of the emergency.
ARTICLE XI. DISTRIBUTIONS
The board of directors may authorize and the corporation may make
distributions to its shareholders, subject to restriction by the articles of
incorporation and applicable law.
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ARTICLE XII. CORPORATE SEAL
The board of directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "Corporate Seal".
ARTICLE XIII. AMENDMENTS
Unless the articles of incorporation, applicable law or a resolution of
the shareholders reserves this power exclusively to the shareholders in whole or
part, the corporation's board of directors may amend or repeal these bylaws and
adopt new bylaws at any regular or special meeting of the board of directors.
ACCEPTED THIS ____ day of _______________, 1996.
By: ___________________________________________
TITLE:
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