BY-LAWS
BAKERY ACQUISITION CORPORATION
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ARTICLE I - OFFICES
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Section 1. The registered office shall be in the City of Wilmington,
New Castle County, Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the Board of
Directors may from time to time determine, or the business of the
corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
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Section 1. All meetings of the stockholders for election of
directors shall be held in Wilmington, Delaware, at such place as may be
fixed from time to time by the Board of Directors, or at such other
place, either within or without Delaware as shall be designated from time
be stated in the notice of meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of the stockholders commencing with the
year 2000 shall be held on the thirty-first of December in each year.
If the designated day is a legal holiday, then the annual
meeting shall be held on the next secular day following or at such other
date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of meeting, at which they shall elect
by a plurality vote by written ballot a Board of Directors, and transact
other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than fifty
days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every
meeting 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 examination by any
stockholder for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten 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.
<PAGE> Exhibit 2(iii) - Pg. 1
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued
and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which
the meeting is called, shall be given not less than ten nor more than
fifty days before the date of the meeting, to each stockholder entitled
to vote at such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of
stockholders for the transaction of business except as otherwise provided
by statute or by the certificate of incorporation. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting
from time to time without notice other than announcement at the meeting,
until a quorum shall be present or represented. 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
notified. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder on
record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of
the statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control
the decision of such question.
Section 10. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder, but no
proxy shall be voted on after three years from its date unless the proxy
provides for a longer period.
Section 11. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of the statutes, the meeting and
<PAGE> Exhibit 2(ii) - Pg. 2
vote of stockholders may be dispensed with if all of the stockholders who
would have been entitled to vote upon the action if such meeting were
held shall consent in writing to such corporate action being taken; or if
the certificate of incorporation authorized the action to be taken with
the written consent of the holders of less than all the stock who would
have been entitled to vote upon the action if a meeting were held, then
on the written consent of the stockholders having not less than such
percentage of the number of votes as may be authorized in the certificate
of incorporation; provided that in no case shall the written consent be
by the holders of stock having less than the minimum percentage of the
vote required by statute for the proposed corporate action; and provide
that prompt notice must be given to all stockholders of the taking of
corporate action without a meeting and by less than unanimous written
consent.
ARTICLE III - DIRECTORS
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Section 1. The number of directors which shall constitute the whole
board shall be one. A director shall be elected at the annual meeting of
the stockholders, except as provided in Section 2 of this Article, and
any director elected shall hold office until his successor is elected and
qualified. A director need not be a stockholder.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or
by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute
less than a majority of the whole board (as constituted immediately prior
to any such increase), the Court of Chancery of the State of Delaware
may, upon application of any stockholder or stockholders holding at least
ten percent of the total number of shares at the time outstanding having
the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by its
Board of Directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
Section 4. A director of the corporation may resign at any time by
giving notice to the Board, the president or secretary of the
corporation. Such resignation shall take effect on the date of 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.
<PAGE> Exhibit 2(ii) - Pg. 3
Section 5. A director or directors may be removed with or without
cause by the affirmative vote of the holders of a majority of all the
shares of stock outstanding entitled to vote, at a special meeting of the
stockholders called for such purposes.
Meetings of the Board of Directors
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Section 6. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 7. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting, and no notice of such
meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum is present. In the
event of the failure of stockholders to fix the time or place of such
first meeting of the newly elected Board of Directors, or in the event
such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings
of waiver signed by all of the directors.
Section 8. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time
be determined by the Board.
Section 9. Special meetings of the Board of Directors may be called
by the president on three days' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by
the president or secretary in like manner and on like notice on the
written request of two directors.
Section 10. At all meetings of the Board, a majority of the
directors shall constitute a quo-rum for the transaction of business and
the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the certificate
of incorporation. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting
until a quorum shall be present.
Section 11. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
Board or committee.
Committees of Directors
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Section 12. The Board of Directors may, upon resolution passed
by a majority of the whole Board, designate one or more committees, each
<PAGE> Exhibit 2(ii) - Pg. 4
committee to consist of two or more of the directors of the corporation.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in
the resolution, shall have and may exercise the powers of the Board of
Directors 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; provided, however, that, in the
absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of
Directors.
Section 13. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Compensation of Directors
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Section 14. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall 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.
ARTICLE IV - NOTICES
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Section 1. Whenever, under the provisions of the statutes or the
certificate of incorporation or-of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears
on the records of the corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be
given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE V - OFFICERS
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Section 1. The officers of the corporation shall be chosen by the
Board of Directors and shall consist of a president, a secretary and a
treasurer. The Board of Directors may also choose one or more vice
presidents, assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
<PAGE> Exhibit 2(ii) - Pg. 5
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose, a president, a secretary and
a treasurer.
Section 3. The Board of Directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed
by the Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy occurring in
any office of the corporation shall be filled by the Board of Directors.
The President
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Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the
Board of Directors, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect.
Section 7. The president shall execute bonds, mortgages, and other
contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed,
and except where the signing and execution there-of shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation.
The Vice Presidents
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Section 8. In the absence of the president, or in the event of his
inability or refusal to act, the vice president (or in the event there be
more than one vice president, the vice presidents in the order
designated, or in the absence of any designation, then in the order of
their election) 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 presidents shall perform such
other duties and have such other powers as the Board of Directors may
from time to time prescribe.
<PAGE> Exhibit 2(ii) - Pg. 6
The Secretary and Assistant Secretary
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Section 9. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the Board of
Directors in a book to be kept for that purpose, and shall perform like
duties for the standing committees when required. He shall give, or cause
to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, or an assistant secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it
may be attested by his signature or by the signature of such assistant
secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation, and to attest the affixing
by his signature.
Section 10. The assistant secretary, or if there be more than
one, the assistant secretary in the order determined by the Board of
Directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the secretary or in the event of
his inability or refusal to act, perform the duties and exercise the
powers of the secretary, and shall perform such other duties and have
such other powers as the Board of Directors may from time to time
prescribe.
The Treasurer and Assistant Treasurers
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Section 11. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to
the credit of the corporation in such depositories as may be designated
by the Board of Directors.
Section 12. The treasurer shall disburse the funds of the
corporation as may be ordered by the Board of Directors taking proper
vouchers for such disbursements, and shall render to the president and
the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as treasurer
and of the financial condition of the corporation.
Section 13. If required by the Board of Directors, the
treasurer shall give the corporation a bond (which shall be renewed every
six years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of
<PAGE> Exhibit 2(ii) - Pg. 7
their election) shall, in the absence of the treasurer or in the event of
his inability or refusal to act, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
ARTICLE VI - CERTIFICATES OF STOCK
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Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by or in the name of the
corporation by the chairman, or vice chairman of the Board of Directors,
or the president or a vice president and the treasurer or an assistant
treasurer or the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by him in the corporation.
Section 2. Where a certificate is countersigned (a) by a transfer
agent other than the corporation or its employee; or (b) by a registrar
other than the corporation or its employee, any other signature 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 a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
Lost Certificates
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Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen
or destroyed, upon the making of an affidavit of the fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen-or destroyed
certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Transfer of Stock
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Section 4. Upon surrender to the corporation or transfer agent of
the corporation or a certificate for shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, it
shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
Transfer Agent and Registrar
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Section 5. The corporation may, if and whenever the Board of
Directors shall so determine, maintain one or more transfer offices or
<PAGE> Exhibit 2(ii) - Pg. 8
agencies within or without the State of Delaware, each in charge of a
transfer agent or agents designated by the Board of Directors, where the
shares of the corporation shall be directly transferable, and also one or
more registry offices, each in charge of a registrar or registrars
designated by the Board of Directors, where such shares shall be so
registered, and no certificate for shares of the corporation in respect
of which a transfer agent or registrar shall have been designated shall
be valid unless countersigned by such transfer agent and registered by
such registrar. The Board of Directors may also make such additional
rules and regulations as it may deem expedient concerning the issue,
transfer and registration of share certificates of the corporation.
Fixing Record Date
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Section 6. 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 to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more
than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Registered Stockholders
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Section 7. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
ow-ner of shares, and shall not be bound to recognize any equitable or
other claim to or in interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII - GENERAL PROVISIONS
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Dividends
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Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think
<PAGE> Exhibit 2(ii) - Pg. 9
conducive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
Annual Statement
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Section 3. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business
and condition of the corporation.
Checks
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Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate.
Fiscal Year
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Section 5. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
Seal
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Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII - AMENDMENTS
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Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the
Certificate of Incorporation at any regular meeting of the stockholders
or of the Board of Directors, or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice
of such special meeting.
<PAGE> Exhibit 2(ii) - Pg. 10
