Exhibit 3.3
BYLAWS OF
WORLDWIDE RESTAURANT CONCEPTS, INC.
(a Delaware corporation)
effective as of April 23, 2003
ARTICLE I
OFFICES
SECTION 1.01 Registered Office. The registered office of
Worldwide Restaurant Concepts, Inc. (hereinafter called the
"Corporation") in the State of Delaware shall be at 2711 Centerville
Road, Suite 400, Wilmington, Delaware, New Castle County, and the name
of the registered agent at that address shall be Corporation Service
Company.
SECTION 1.02 Principal Office. The principal office for the
transaction of the business of the Corporation shall be at 15301
Ventura Boulevard, Building B, Suite 300, Sherman Oaks, California, Los
Angeles County. The Board of Directors (hereinafter called the "Board")
is hereby granted full power and authority to change said principal
office from one location to another.
SECTION 1.03 Other Offices. The Corporation may also have an
office or offices at such other place or places, either within or
without the State of Delaware, as the Board may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01 Annual Meetings. Annual meetings of the stockholders
of the Corporation for the purpose of electing directors and for the
transaction of such other proper business as may come before such
meetings may be held at such time, date and place as the Board shall
determine by resolution.
SECTION 2.02 Special Meetings. Special meetings of the
stockholders of the Corporation for any purpose or purposes may be
called at any time by the Board, or by a committee of the Board which
has been duly designated by the Board and whose powers and authority,
as provided in a resolution of the Board or in the Bylaws, include the
power to call such meetings, but such special meetings may not be
called by any other person or persons; provided, however, that if and
to the extent that any
special meeting of stockholders may be called by any other person or
persons specified in any provisions of the Certificate of Incorporation
or any amendment thereto or any certificate filed under Section 151(g)
of the Delaware General Corporation Law (or its successor statute as in
effect from time to time hereafter), then such special meeting may also
be called by the person or persons, in the manner, at the times and for
the purposes so specified.
SECTION 2.03 Place of Meetings. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware,
as may from time to time be designated by the person or persons calling
the respective meeting and specified in the respective notices or
waivers of notice thereof.
SECTION 2.04 Notice of Meetings. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or
special, shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder of record
entitled to vote at such meeting by delivering a typewritten or printed
notice thereof to him personally, or by depositing such notice in the
United States mail, in a postage prepaid envelope, directed to him at
his post office address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the
Secretary his address for such purpose, then at his post office address
last known to the Secretary, or by transmitting a notice thereof to him
at such address by telegraph, cable or wireless. Except as otherwise
expressly required by law, no publication of any notice of a meeting of
the stockholders shall be required. Every notice of a meeting of the
stockholders shall state the place, date and hour of the meeting, and,
in the case of a special meeting, shall also state the purpose or
purposes for which the meeting is called. Notice of any meeting of
stockholder shall not be required to be given to any stockholder who
shall have waived such notice and such notice shall be deemed waived by
any stockholder who shall attend such meeting in person or by proxy,
except as a stockholder who shall attend such meeting for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called
or convened. Except as otherwise expressly required by law, notice of
any adjourned meeting of the stockholders need not be given if the time
and place thereof are announced at the meeting at which the adjournment
is taken.
SECTION 2.05 Quorum. Except in the case of any meeting for the
election of directors summarily ordered as provided by law, the holders
of record of a majority in voting interest of the shares of stock of
the Corporation entitled to be voted thereat, present in person or by
proxy, shall constitute a quorum for the transaction of business at any
meeting of the stockholders of the Corporation or any adjournment
thereof. In the absence of a quorum at any meeting or any adjournment
thereof, a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat or, in the absence
therefrom of all the stockholders, any officer entitled to preside at,
or to act as secretary of, such meeting may adjourn such meeting from
time to time. At any such adjourned meeting at which a quorum is
present any
2
business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 2.06 Voting.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each
share or fractional share of the stock of the Corporation having
voting rights on the matter in question and which shall have been
held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of
these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such
meeting, or
(ii) if no such record date shall have been so fixed,
then (a) at the close of business on the day next preceding
the day on which notice of the meeting shall be given or (b)
if notice of the meeting shall be waived, at the close of
business on the day next preceding the day on which the
meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or
to another corporation, if a majority of the shares entitled to
vote in the election of directors in such other corporation is
held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes. Persons
holding stock of the Corporation in a fiduciary capacity shall be
entitled to vote such stock. Persons whose stock is pledged shall
be entitled to vote, unless in the transfer by the pledgor on the
books of the Corporation he shall have expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his
proxy, may represent such stock and vote thereon. Stock having
voting power standing of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint
tenants in common, tenants by entirety or otherwise, or with
respect to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by his proxy appointed
by an instrument in writing, subscribed by such stockholder or by
his attorney thereunto authorized and delivered to the secretary
of the meeting; provided, however, that no proxy shall be voted
or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting
of a stockholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless he shall in writing
so notify the secretary of the meeting prior to the voting of the
proxy. At any meeting of the stockholders
3
all matters, except as otherwise provided in the Certificate of
Incorporation, in these Bylaws or by law, shall be decided by the
vote of a majority in voting interest of the stockholders present
in person or by proxy and entitled to vote thereat and thereon, a
quorum being present. The vote at any meeting of the stockholders
on any question need not be by ballot, unless so directed by the
chairman of the meeting. On a vote by ballot each ballot shall be
signed by the stockholder voting, or by his proxy, if there be
such proxy, and it shall state the number of shares voted.
SECTION 2.07 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) days before every
meting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior
to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
SECTION 2.08 Judges. If at any meeting of the stockholders a vote
by written ballot shall be taken on any question, the chairman of such
meeting may appoint a judge or judges to act with respect to such vote.
Each judge so appointed shall first subscribe an oath faithfully to
execute the duties of a judge at such meeting with strict impartiality
and according to the best of his ability. Such judges shall decide upon
the qualification of the voters and shall report the number of shares
represented at the meeting and entitled to vote on such question, shall
conduct and accept the votes, and, when the voting is completed, shall
ascertain and report the number of shares voted respectively for and
against the question. Reports of judges shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation.
The judges need not be stockholders of the Corporation, and any officer
of the Corporation may be a judge on any question other than a vote for
or against a proposal in which he shall have a material interest.
SECTION 2.09 Advance Notice of Stockholder Proposals and
Stockholder Nominations.
(a) At any meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting
(i) by or at the direction of the Board or (ii) by any
stockholder of the Corporation who complies with the notice
procedures set forth in this Section 2.09(a). For business to be
properly brought before any meeting of the stockholders by a
stockholder, the stockholder must have given notice thereof in
writing to the
4
Secretary of the Corporation not less than 90 days in advance of
such meeting or, if later, the seventh day following the first
public announcement of the date of such meeting. A stockholder's
notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (1) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting, (2) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business,
(3) the class and number of shares of the Corporation that are
beneficially owned by the stockholder, and (4) any material
interest of the stockholder in such business. In addition, the
stockholder making such proposal shall promptly provide any other
information reasonably requested by the Corporation.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any meeting of the stockholders
except in accordance with the procedures set forth in this
Section 2.09. The Chairman of any such meeting shall direct that
any business not properly brought before the meeting shall not be
considered.
(b) Nominations for the election of directors may be
made by the Board or by any stockholder entitled to vote in the
election of directors; provided, however, that a stockholder may
nominate a person for election as a director at a meeting only if
written notice of such stockholder's intent to make such
nomination has been given to the Secretary of the Corporation not
later than 90 days in advance of such meeting or, if later, the
seventh day following the first public announcement of the date
of such meeting. Each such notice shall set forth: (i) the name
and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (ii) a
representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting and
nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination
or nominations are to be made by the stockholder; (iv) such other
information regarding each nominee proposed by such stockholder
as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the United States Securities and
Exchange Commission had the nominee been nominated, or intended
to be nominated, by the Board; and (v) the consent of each
nominee to serve as a director of the Corporation if so elected.
In addition, the stockholder making such nomination shall
promptly provide any other information reasonably requested by
the Corporation. No person shall be eligible for election as a
director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 2.09 (b). The Chairman
of any meeting of stockholders shall direct that any nomination
not made in accordance with these procedures be disregarded.
5
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01 General Powers. The property, business and affairs
of the Corporation shall be managed by the Board.
SECTION 3.02 Number and Term of Office. The authorized number of
directors of the Corporation shall be eight (8) and such authorized
number shall not be changed except by a Bylaw or amendment thereof duly
adopted by the stockholders in accordance with the Certificate of
Incorporation or by the Board amending this Section 3.02. Each of the
directors of the Corporation shall hold office until his successor
shall have been duly elected and shall qualify or until he shall resign
or shall have been removed in the manner hereinafter provided.
SECTION 3.03 Election of Directors. The directors shall be
elected by the stockholders of the Corporation, and at each election
the persons receiving the greatest number of votes, up to the number of
directors then to be elected, shall be the persons then elected. The
election of directors is subject to any provisions contained in the
Certificate of Incorporation relating thereto, including any provisions
for a classified board and for cumulative voting. Nominations of
persons to serve as directors must be submitted to the Secretary of the
Corporation not less than ten (10) days prior to the meeting of
stockholders at which directors shall be elected.
SECTION 3.04 Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the
Secretary of the Corporation. Any such resignation shall take effect at
the time specified therein, or, if the time be not specified, it shall
take effect immediately upon its receipt; and unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.05 Vacancies. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because
of death, resignation, disqualification, an increase in the number of
directors, or any other cause, may be filled by vote of the majority of
the remaining directors, although less than a quorum. Each director so
chosen to fill a vacancy shall hold office until his successor shall
have been elected and shall qualify or until he shall resign or shall
have been removed.
SECTION 3.06 Place of Meeting, Etc. The Board may hold any of its
meetings at such place or places within or without the State of
Delaware as the Board may from time to time by resolution designate or
as shall be designated by the person or persons calling the meeting or
in the notice or a waiver of notice of any such
6
meeting. Directors may participate in any regular or special meeting of
the Board by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of
the Board can hear each other, and such participation shall constitute
presence in person at such meeting.
SECTION 3.07 First Meeting. The Board shall meet as soon as
practicable after each annual election of directors and notice of such
first meeting shall not be required.
SECTION 3.08 Regular Meetings. Regular meetings of the Board may
be held at such times as the Board shall from time to time by
resolution determine. If any day fixed for a regular meeting shall be a
legal holiday at the place where the meeting is to be held, then the
meeting shall be held at the same hour and place on the next succeeding
business day not a legal holiday. Except as provided by law, notice of
regular meetings need not be given.
SECTION 3.09 Special Meetings. Special meetings of the Board may
be called at any time by the Chairman of the Board or the President or
by any two (2) directors, to be held at the principal office of the
Corporation, or at such other place or places, within or without the
State of Delaware, as the person or persons calling the meeting may
designate.
Notice of all special meetings of the Board shall be given to
each director by two (2) days' service of the same by telephone,
telegram, facsimile, e-mail, letter, or personally. Such notice may be
waived by any director and any meeting shall be a legal meeting without
notice having been given if all the directors shall be present thereat
or if those not present shall, either before or after the meeting, sign
a written waiver of notice of, or a consent to, such meeting or shall
after the meeting sign the approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate
records or be made part of the minutes of the meeting.
SECTION 3.10 Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws or by law, the presence of a majority of the
authorized number of directors shall be required to constitute a quorum
for the transaction of business at any meeting of the Board, and all
matters shall be decided at any such meeting, a quorum being present,
by the affirmative votes of a majority of the directors present. In the
absence of a quorum, a majority of directors present at any meeting may
adjourn the same from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall
act only as a Board, and the individual directors shall have no power
as such.
SECTION 3.11 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board or of any committee
thereof may be taken without a meeting if a written consent thereto is
signed by all members of the Board or
7
of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
SECTION 3.12 Compensation. No stated salary need be paid
directors, as such, for their services, but, by resolution of the
Board, a fixed sum and expenses of attendance, if any, may be allowed
for attendance at each regular or special meeting of the Board or an
annual directors' fee may be paid; provided that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 3.13 Committees. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. Any such committee, to the extent provided in the
resolution of the Board, and except as otherwise limited by law, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have any power or authority
in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders
the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of the dissolution, or
amending the Bylaws of the Corporation; and unless the resolution of
the Board expressly so provides, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of
stock. Any such committee shall keep written minutes of its meetings
and report the same to the Board at the next regular meeting of the
Board.
SECTION 3.14 Officers of the Board. The Board shall have a
Chairman of the Board and may, at the discretion of the Board, have a
Vice Chairman. The Chairman of the Board and the Vice Chairman shall be
appointed from time to time by the Board and shall have such powers and
duties as shall be designated by the Board.
ARTICLE IV
OFFICERS
SECTION 4.01 Officers. The officers of the Corporation shall
be a Chairman of the Board, a Chief Executive Officer, a President, a
Chief Financial Officer and Treasurer, one or more Vice Presidents and
a Secretary. The Corporation may also have, at the discretion of the
Board, a Chief Operating Officer, one or more
8
Assistant Vice Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers and such other officers as may be appointed
in accordance with the provisions of Section 4.03 of this Article IV.
One person may hold two or more offices, except that the Secretary may
not also hold the office of President or Chief Executive Officer.
SECTION 4.02 Election. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of
Section 4.03 or Section 4.05 of this Article, shall be chosen annually
by the Board, and each shall hold his office until he shall resign or
shall be removed or otherwise disqualified to serve, or his successor
shall be elected and qualified.
SECTION 4.03 Subordinate Officers, Etc. The Board may appoint
such other officers as the business of the Corporation may require,
each of whom shall have such authority and perform such duties as are
provided in these Bylaws or as the Board may from time to time specify,
and shall hold office until he shall resign or shall be removed or
otherwise disqualified to serve.
SECTION 4.04 Removal and Resignation. Any officer may be
removed, either with or without cause, by a majority of the directors
at the time in office, at any regular or special meeting of the Board,
or, except in case of an officer chosen by the Board, by any officer
upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to
the Board, the Chairman of the Board, the President or the Secretary of
the Corporation. Any such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein; and
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 4.05 Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall
be filled in the manner prescribed in the Bylaws for the regular
appointments to such office.
SECTION 4.06 Chairman of the Board. The Chairman of the Board
shall, subject to the control of the Board, serve a general oversight,
planning and policy making function, shall preside at all meetings of
stockholders and at all meetings of the Board, and shall perform such
other functions as determined from time to time by the Board.
SECTION 4.07 Chief Executive Officer. The Chief Executive
Officer of the Corporation shall, subject to the control of the Board,
have general supervision, direction and control of the business and
affairs of the Corporation. In the absence of the Chairman of the
Board, he shall preside at all meetings of stockholders. He shall have
the general powers and duties of management usually vested in the chief
9
executive officer of a corporation, and shall have such other powers
and duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to him
by the Board or as is prescribed by the Bylaws.
SECTION 4.08 President. The President shall exercise and
perform such powers and duties with respect to the administration of
the business and affairs of the Corporation as may from time to time be
assigned to such officer by the Chief Executive Officer (unless the
President is also the Chief Executive Officer) or by the Board or as is
prescribed by the Bylaws. In the absence or disability of the Chief
Executive Officer, the President shall perform all of the duties of the
Chief Executive Officer and when so acting shall have all of the powers
and be subject to all the restrictions upon the Chief Executive
Officer.
SECTION 4.09 Vice Presidents. The Vice Presidents shall
exercise and perform such powers and duties with respect to the
administration of the business and affairs of the Corporation as may
from time to time be assigned to each of them by the President or by
the Chief Executive Officer or by the Board or as is prescribed by the
Bylaws. In the absence or disability of the President, the Vice
Presidents, in order of their rank as fixed by the Board, or if not
ranked, the Vice President designated by the Board, shall perform all
of the duties of the President and when so acting shall have all of the
powers of and be subject to all the restrictions upon the President.
SECTION 4.10 The Chief Financial Officer and Treasurer. The
Chief Financial Officer and Treasurer shall keep and maintain, or cause
to be kept and maintained, adequate and correct accounts of the
properties and business transactions of the Corporation, including
accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares. Any surplus, including earned
surplus, paid-in surplus and surplus arising from a reduction of
capital, shall be classified according to source and shown in a
separate account. The books of account shall at all reasonable times be
open to inspection by any director.
The Chief Financial Officer and Treasurer shall deposit all
moneys and other valuables in the name and to the credit of the
Corporation with such depositories as may be designated by the Board.
He shall disburse the funds of the Corporation as may be ordered by the
Board, shall render to the President, to the Chief Executive Officer,
and to the directors, whenever they request it, an account of all his
transactions as Chief Financial Officer and Treasurer and of the
financial condition of the Corporation, and shall have such other
powers and perform such other duties as may be prescribed by the Board
or these Bylaws.
SECTION 4.11 Secretary. The Secretary shall keep, or cause to
be kept, a book of minutes at the principal office for the transaction
of the business of the Corporation, or such other place as the Board
may order, of all meetings of directors and stockholders, with the time
and place of holding, whether regular or special, and if special, how
authorized and the notice thereof given, the names of those present at
10
directors' meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the
principal office for the transaction of the business of the Corporation
or at the office of the Corporation's transfer agent, a share register,
or a duplicate share register, showing the names of the stockholders
and their addresses; the number and classes of shares held by each; the
number and date of certificates issued for the same; and the number and
date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
the meetings of the stockholders and of the Board required by these
Bylaws or by law to be given, and he shall keep the seal of the
Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board or these
Bylaws. If for any reason the Secretary shall fail to give notice of
any special meeting of the Board called by one or more of the persons
identified in Section 3.09, or if he shall fail to give notice of any
special meeting of the stockholders called by one or more of the
persons identified in Section 2.02, then any such person or persons may
give notice of any such special meeting.
SECTION 4.12 Compensation. The compensation of the officers of
the Corporation shall be fixed from time to time by the Board. None of
such officers shall be prevented from receiving such compensation by
reason of the fact that he is also a director of the Corporation.
Nothing contained herein shall preclude any officer from serving the
Corporation, or any subsidiary corporation, in any other capacity and
receiving such compensation by reason of the fact that he is also a
director of the Corporation. Nothing contained herein shall preclude
any officer from serving the Corporation, or any subsidiary
corporation, in any other capacity and receiving proper compensation
therefor.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 5.01 Execution of Contracts. The Board, except as in
these Bylaws otherwise provided, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument
in the name and on behalf of the Corporation, and such authority may be
general or confined to specific instances; and unless so authorized by
the Board or by these Bylaws, no officer, agent or employee shall have
any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any
purpose or in any amount.
11
SECTION 5.02 Checks, Drafts, Etc. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or
endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the Board. Each such person
shall give such bond, if any, as the Board may require.
SECTION 5.03 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, trust companies or other depositories
as the Board may select, or as may be selected by any officer or
officers, assistant or assistants, agent or agents, or attorney or
attorneys of the Corporation to whom such power shall have been
delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of the Corporation, the Chief Executive
Officer, the President, any Vice President or the Chief Financial
Officer and Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the
Corporation who shall from time to time be determined by the Board) may
endorse, assign and deliver checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation.
SECTION 5.04 General and Special Bank Accounts. The Board may
from time to time authorize the opening and keeping of general and
special bank accounts with such banks, trust companies or other
depositories as the Board may select or as may be selected by any
officer or officers, assistant or assistants, agent or agents, or
attorney or attorneys of the Corporation to whom such power shall have
been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with
the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 6.01 Certificates for Stock. Every owner of stock of
the Corporation shall be entitled to have a certificate or
certificates, to be in such form as the Board shall prescribe,
certifying the number and class of shares of the stock of the
Corporation owned by him. The certificates representing shares of such
stock 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
Board, the President, or a Vice President, and by the Secretary or an
Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any
or all of the signatures on the certificates may be a facsimile. In
case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon, any such certificate shall
thereafter have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may
12
nevertheless be issued by the Corporation with the same effect as
though the person who signed such certificate, or whose facsimile
signature shall have been placed thereupon, were such officer, transfer
agent or registrar at the date of issue. A record shall be kept of the
respective names of the persons, firms or corporations owning the stock
represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the respective
dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for
exchange or transfer shall be canceled, and no new certificate or
certificates shall be issued in exchange for any existing certificate
until such existing certificate shall have been so canceled, except in
cases provided for in Section 6.04.
SECTION 6.02 Transfers of Stock. Transfers of shares of stock
of the Corporation shall be made only on the books of the Corporation
by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the
Secretary, or with a transfer clerk or a transfer agent appointed as
provided in Section 6.03, and upon surrender of the certificate or
certificates for such shares properly endorsed and the payment of all
taxes thereon. The person in whose name shares of stock stand on the
books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, such fact
shall be stated expressly in the entry of transfer if, when the
certificate or certificates shall be presented to the Corporation for
transfer, both the transferor and the transferee request the
Corporation to do so.
SECTION 6.03 Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates
for shares of the stock of the Corporation. It may appoint, or
authorize any officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and
may require all certificates for stock to bear the signature or
signatures of any of them.
SECTION 6.04 Lost, Stolen, Destroyed, and Mutilated
Certificates. In any case of loss, theft, destruction, or mutilation of
any certificate of stock, another may be issued in its place upon proof
of such loss, theft, destruction, or mutilation and upon the giving of
a bond of indemnity to the Corporation in such form and in such sum as
the Board may direct; provided, however, that a new certificate may be
issued without requiring any bond when, in the judgment of the Board,
it is proper to do so.
SECTION 6.05 Fixing Date for Determination of Stockholders of
Record. 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 other change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may fix,
in advance, a record date, which shall not be more than sixty (60) nor
less than ten (10)
13
days before the date of such meeting, nor more than sixty (60) days
prior to any other action. If in any case involving the determination
of stockholders for any purpose other than notice of or voting at a
meeting of stockholders, the Board shall not fix such a record date,
the record date for determining stockholders for such purpose shall be
the close of business on the day on which the Board shall adopt the
resolution relating thereto. A determination of stockholders entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of such meeting; provided, however, that the Board may fix
a new record date for the adjourned meeting.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 Actions, Etc., Other Than by or in the Right of
the Corporation. 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, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or as a member of any committee or similar
body, 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 if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to, the best interests 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 in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, that he had reasonable cause to believe that his conduct
was unlawful.
SECTION 7.02 Actions, Etc., by or in the Right of the
Corporation. 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, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or as a member of any committee or similar
body, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement
of such action
14
or suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 7.03 Determination of Right of Indemnification. Any
indemnification under Section 7.01 or 7.02 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 7.01
and 7.02. Such determination shall be made (i) by the Board by a
majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii)
by the stockholders.
SECTION 7.04 Indemnification Against Expenses of Successful
Party. Notwithstanding the other provisions of this Article, to the
extent that a director, officer, employee or agent of the Corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 7.01 or 7.02, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
SECTION 7.05 Advance of Expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board in the specific case upon
receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Corporation as
authorized in this Article.
SECTION 7.06 Other Rights and Remedies. The indemnification
provided by this Article shall not be deemed exclusive and is declared
expressly to be nonexclusive of any other rights to which one seeking
indemnification may be entitled under any Bylaws, 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 as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
15
SECTION 7.07 Insurance. Upon resolution passed by the Board,
the Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or as a member
of any committee or similar body, against any liability asserted
against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power
to indemnify him against such liability under the provisions of this
Article.
SECTION 7.08 Constituent Corporations. For the purposes of
this Article, references to "the Corporation" include in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or as a member of any committee or similar
body, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 7.09 Other Enterprises, Fines and Serving at
Corporation's Request. For purposes of this Article, references to
"other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Seal. The Board shall provide a corporate seal,
which shall be in the form of a circle and shall bear the name of the
Corporation and words
16
and figures showing that the Corporation was incorporated in the State
of Delaware and the year of incorporation.
SECTION 8.02 Waiver of Notices. Whenever notice is required to
be given by these Bylaws or the Certificate of Incorporation or by law,
the person entitled to said notice may waive such notice in writing,
either before or after the time stated therein, and such waiver shall
be deemed equivalent to notice.
SECTION 8.03 Fiscal Year. The fiscal year of the Corporation
shall end on the Sunday nearest to April 30 in each year and the
succeeding fiscal year shall begin on the Monday immediately following
such Sunday.
SECTION 8.04 Amendments. These Bylaws, or any of them, may be
rescinded, altered, amended, or repealed, and new Bylaws may be made,
(i) by the Board, by vote of a majority of the number of directors then
in office as directors, acting at any meeting of the Board, or (ii) by
the vote of the holders of not less than seventy percent (70%) of the
total voting power of all outstanding shares of voting stock of the
Corporation, at an annual meeting of stockholders, without previous
notice, or at any special meeting of stockholders, provided that notice
of such proposed amendment, modification, repeal or adoption is given
in the notice of special meeting. Any Bylaws made or altered by the
stockholders may be altered or repealed by the Board or may be altered
or repealed by the Stockholders.
17