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EXHIBIT 3.2
RESTATED
BYLAWS
OF
INTERSTATE BRANDS CORPORATION
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. The Annual Meeting of Stockholders
of the Corporation shall be held at 10:00 a.m. on the fourth Thursday of
October, or at such time and date as the Board of Directors by resolution shall
determine and as set forth in the notice of the meeting, for the election of
Directors and for the transaction of any other proper business. If the date of
the Annual Meeting shall fall upon a legal holiday, under federal law or the
laws of the state where such meeting is to be held, such meeting shall be held
on the next succeeding business day.
Section 2. Special Meetings. Special meetings of the
Stockholders of the Corporation may be called at any time by the President or
the Board of Directors then in office. Special Meetings of the Stockholders
shall be held at such time and on such date as shall be specified in the call
thereof.
Section 3. Place of Meetings. Annual and Special Meetings of
the Stockholders shall be held at such place within or without the State of
Delaware as is designated by the Board of Directors.
Section 4. Notice of Meetings. Written notice of each meeting
of the Stockholders, stating the place, date and hour thereof, and in the case
of a Special Meeting, the purpose or purposes for which it is called, shall be
given, not less than ten (10) nor more than sixty (60) days before the date of
such meeting (or at such other time as may be required by statute), either
personally or by mail, to each Stockholder entitled to vote at such meeting. If
mailed, such notice is given when deposited in the United States mail, postage
prepaid, directed to each Stockholder at his or her address as it appears on the
records of the Corporation.
Section 5. Waiver of Notice. Whenever notice is required to be
given of any Annual or Special Meeting of the Stockholders, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated in such notice, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Stockholders need be specified in any written waiver of notice.
Attendance of a person at a meeting of the Stockholders shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 6. Adjournment. When any meeting of the Stockholders
is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place
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to which the meeting is adjourned are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after such adjournment the Board of
Directors shall fix a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each Stockholder of record entitled to vote
at such meeting.
Section 7. Quorum. At any meeting of the Stockholders, the
presence, in person or by proxy, of the holders of a majority of the issued and
outstanding shares of the Corporation entitled to vote at such meeting shall be
necessary in order to constitute a quorum for the transaction of any business;
provided, however, that where a separate vote by a class or classes is required,
a majority of the outstanding shares of such class or classes present in person
or by proxy shall constitute a quorum entitled to take action with respect to a
vote on that matter. If there shall not be a quorum at any meeting of the
Stockholders, the holders of a majority of the shares entitled to vote present
at such meeting, in person or by proxy, may adjourn such meeting from time to
time, without further notice to the Stockholders other than an announcement at
such meeting, until holders of the amount of shares required to constitute a
quorum shall be present in person or by proxy.
Section 8. Voting. Each Stockholder shall be entitled to one
vote for each share of Common Stock held by such Stockholder. The voting rights
of any Preferred Stockholder, including without limitation the number of votes
per share of Preferred Stock held by such Stockholder, shall be determined by
the Board of Directors in the resolution or resolutions authorizing the issuance
of the class or series of Preferred Stock held by such Stockholder, which terms
shall be set forth in the Certificate of Designation for such class or series of
Preferred Stock. Voting need not be by written ballot. Whenever any corporate
action is to be taken by vote of the Stockholders, it shall, except as otherwise
required by law or by the Certificate of Incorporation or these Bylaws, be
authorized by a plurality of the votes cast at a meeting of Stockholders by the
holders of shares entitled to vote thereon.
Section 9. Action Without a Meeting. Any action which may be
taken at a meeting of the Stockholders may be taken without a meeting of
consents in writing, setting forth the action so taken, shall be signed by a
majority of the Stockholders entitled to vote with respect to the subject matter
thereof. Such consents shall have the same force and effect as a majority vote
of the Stockholders at a meeting duly held, and may be stated as such in any
certificate or document filed under The General Corporation Law of Delaware. The
Secretary shall file such consents with the minutes of the meetings of the
Stockholders.
Section 10. Record Date. The Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of any meeting of Stockholders, nor more than
sixty (60) days prior to any other action, as the record date for the purpose of
determining the Stockholders entitled to notice of or to vote at any meeting of
the Stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action.
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If no record date is fixed:
(1) The record date for determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders shall be
at the close of business on the day next preceding the day of notice,
or, if notice is waived, at the close of business on the day, next
preceding the day on which the meeting is held.
(2) The record date for determining Stockholders for
any other purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
Section 11. Proxies. Each Stockholder entitled to vote at a
meeting of Stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for him
or her by proxy, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period.
ARTICLE II
DIRECTORS
Section 1. Number; Election; Terms. The business and affairs
of the Corporation shall be managed by the Board of Directors. The number of
Directors which shall constitute the whole Board of Directors of the Corporation
shall be six (6) or such other number as may be determined from time to time by
the Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors or by the Stockholders.
Election of Directors of the Corporation need not be by
written ballot. Directors need not be Stockholders.
Section 2. Removal of Directors. Any Director or the entire
Board of Directors may be removed by the affirmative vote of the holders of a
majority of the voting power of all the shares of the Corporation entitled to
vote for the election of directors.
Section 3. Newly Created Directorships; Vacancies. Any
vacancy, whether arising through death, resignation, retirement,
disqualification, removal from office or other cause, or any 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, although less than
a quorum, by a sole remaining Director, or by the stockholders. When one or more
Directors shall resign from the Board of Directors, effective at a future date,
a majority of the Directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided above in
the filling of other vacancies. A Director elected to fill a vacancy shall hold
office for the unexpired term of his or her predecessor.
Section 4. Term of Office. Each Director shall hold office
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal.
Section 5. Meetings. A meeting of the Board of Directors shall
be held for the election of officers and for the transaction of such other
business as may come before such
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meeting as soon as practicable after the Annual Meeting of the Stockholders.
Other regular meetings of the Board of Directors may be held at such times as
the Board of Directors of the Corporation may from time to time determine.
Special Meetings of the Board of Directors may be called at any time by the
President of the Corporation or by a majority of the Directors then in office.
Meetings of the Board of Directors may be held within or without the State of
Delaware.
Section 6. Notice of Meetings; Waiver of Notice; Adjournment.
No notice need be given of the first meeting of the Board of Directors after the
Annual Meeting of Stockholders or of any other regular meeting of the Board of
Directors. Notice of a Special Meeting of the Board of Directors, specifying the
place, date and hour thereof, shall be delivered personally, mailed, telegraphed
or telephoned to each Director at his or her address as such address appears on
the books of the Corporation at least one (1) business day (Saturdays, Sundays
and legal holidays not being considered business days for the purpose of these
Bylaws) before the date of such meeting. Whenever notice is required to be given
under any provision of the General Corporation Law of the State of Delaware or
of the Certificate of Incorporation or these Bylaws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a Director at a
Special Meeting shall constitute a waiver of notice of such meeting, except when
the Director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders,
Directors, or members of a committee of Directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or these Bylaws. A majority of the Directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice need not be
given of the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken, and at
the adjourned meeting any business may be transacted that might have been
transacted at the original meeting.
Section 7. Quorum; Voting. A majority of the total number of
Directors shall constitute a quorum for the transaction of business. The vote of
the majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 8. Participation by Telephone. Members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
Section 9. Action Without a Meeting. 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 of
Directors or such committee, as the case may be, consent thereto in writing. The
Secretary shall file such writing or writings with the minutes of proceedings of
the Board of Directors or of such committee.
Section 10. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of
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one or more of the Directors. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, but no such committee shall have the power or
authority in reference to (a) amending the Certificate of Incorporation; (b)
adopting an agreement of merger or consolidation; (c) recommending to the
Stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets; (d) recommending to the Stockholders a
dissolution of the Corporation or a revocation of a dissolution; or (e) amending
the Bylaws and, unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. The Board of Directors may designate one or more Directors as
alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee. In the absence of
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another Director to act at the
meeting in the place of such absent or disqualified member.
Section 11. Compensation. The Board of Directors may fix the
compensation of Directors.
Section 12. Preferred Stock Directors. The terms and
conditions upon which Preferred Stock Directors shall be elected and serve on
the Board of Directors shall be determined by the Board of Directors in the
resolution or resolutions authorizing the issuance of the class of series of
Preferred Stock pursuant to which a Preferred Stock Director is elected,
including without limitation the duration of such Preferred Stock Director's
term of office and the terms and conditions upon which such Preferred Stock
Director may be removed from office.
Section 13. Amendment; Repeal. In furtherance and not
limitation of the powers conferred by the laws of the State of Delaware, the
Board of Directors of the Corporation is authorized and empowered to make,
alter, amend or repeal the Bylaws of the corporation in any manner not
inconsistent with the laws of the State of Delaware.
Section 14. Limitation of Liability for Breach of Fiduciary
Duty. To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a Director of
this Corporation shall not be liable to the Corporation or its Stockholders, for
monetary damages for breach of fiduciary duty as a Director.
ARTICLE III
OFFICERS
Section 1. Election; Qualifications. At the first meeting of
the Board of Directors and as soon as practicable after each Annual Meeting of
Stockholders, the Board of Directors shall elect or appoint a Chairman of the
Board of Directors, a President, a Vice President, a Secretary and a Treasurer,
and may elect or appoint at such time or from time to time such additional
Officers as it deems advisable. No Officer need be a Director of the
Corporation. Any number of offices may be held by the same person, except that
there shall always be two persons who hold offices which entitle them to sign
instruments and stock certificates.
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Section 2. Term of Office; Vacancies. Each Officer shall hold
office until the election and qualification of his or her successor or until his
or her earlier death, resignation or removal. Any vacancy occurring in any
office, whether because of death, resignation or removal, with or without cause,
or otherwise, shall be filled by the Board of Directors.
Section 3. Removal; Resignation. Any Officer may be removed
from office at any time with or without cause by the Board of Directors. Any
Officer may resign his or her office at any time upon written notice to the
Corporation.
Section 4. Powers and Duties of the Chairman of the Board.
When elected, the Chairman of the Board shall preside at meetings of the Board
of Directors and of the Stockholders, and, subject to the direction and control
of the Board of Directors, he or she shall direct the policy and management of
the Corporation. He or she shall perform such other duties as may be prescribed
by the Board of Directors from time to time. In the absence of the Chairman of
the Board, the President shall have and may exercise all of the powers of the
Chairman.
Section 5. Powers and Duties of the President. The President
shall be the Chief Executive Officer of the corporation and, subject to the
direction and under the supervision of the Board of Directors, shall have
general charge of the business, affairs and property of the Corporation and
control over its officers, agents and employees; shall preside at all meetings
of the Stockholders and of the Board of Directors at which he or she is present;
and shall do and perform such other duties and may exercise such other powers as
from time to time may be assigned to him or her by these Bylaws or by the Board
of Directors.
Section 6. Powers and Duties of Vice Presidents. Each Vice
President shall be given such titles and designations and shall have such powers
and perform such duties as may from time to time be assigned to him or her by
the Board of Directors.
Section 7. Powers and Duties of the Secretary. The Secretary
shall record and keep the minutes of all meetings of the Stockholders and of the
Board of Directors in a book to be kept for that purpose. The Secretary shall
attend to the giving and serving of all notices by the Corporation. The
Secretary shall be the custodian of, and shall make or cause to be made the
proper entries in, the minute took of the Corporation and such other books and
records as the Board of Directors may direct. The Secretary shall be the
custodian of the corporate seal for the Corporation and shall affix or cause to
be affixed such seal to such contracts and other instruments as the Board of
Directors may direct. The Secretary shall have such other powers and shall
perform such other duties as may from time to time be assigned to him or her by
the Board of Directors.
Section 8. Powers and Duties of the Treasurer. The Treasurer
shall be the custodian of all funds and securities of the Corporation. Whenever
required by the Board of Directors, the Treasurer shall render a statement of
the Corporation's cash and other accounts, and shall cause to be entered
regularly in the proper books and records of the Corporation to be kept for such
purpose full and accurate accounts of the Corporation's receipts and
disbursements. The Treasurer shall at all reasonable times exhibit the
Corporation's books and accounts to any Director of the Corporation upon
application at the principal office of the Corporation during
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business hours. The Treasurer shall have such other powers and shall perform
such other duties as may from time to time be assigned to him or her by the
Board of Directors.
Section 9. Powers and Duties of Assistant Secretary and
Assistant Treasurer. The Assistant Secretary and Assistant Treasurer (or in the
event there be more than one Assistant Secretary or Assistant Treasurer, in the
order of their seniority, designation or election) shall, in the absence or
disability of the secretary or Treasurer, respectively, perform the duties and
exercise the powers of the Secretary or Treasurer and shall perform such other
duties as the President or the Board of Directors shall prescribe.
Section 10. Delegation. In the event of the absence of any
Officer of the Corporation or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may at any time or from time to time
delegate all or any part of the powers or duties of any Officer to any other
Officer or Officers or to any Director or Directors.
ARTICLE IV
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. Certificates of Stock. Certificates representing
shares of the Corporation shall be in such form as may be determined by the
Board of Directors. Such certificates shall be signed, manually or by facsimile
or otherwise, by the President or Vice President and by the Secretary, Treasurer
or Assistant Secretary or Assistant Treasurer and shall be sealed with the Seal
of the Corporation. All certificates of stock shall be consecutively numbered.
The name of the person owning the shares represented thereby, with the numbers
of shares and the date of issuance, shall be entered on the 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.
Section 2. Lost Certificates. In the event a certificate of
stock is allegedly lost, stolen or destroyed, the Corporation may issue a new
certificate under the conditions for issuing a new certificate as determined by
the Board of Directors. The Corporation may require the owner of such
certificate to give a good and sufficient bond to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft or destruction, or the issuance of the new certificate.
Section 3. Transfer of Shares. Transfer of shares of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof or by his or her 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. The person in
whose name shares stand on the books of the Corporation shall be deemed owner
thereof for all purposes as regards the Corporation.
Section 4. Treasury Stock. All issued and outstanding stock of
the Corporation that may be purchased or otherwise acquired by the Corporation
shall be Treasury Stock, and the Directors of the Corporation shall be vested
with authority to resell said shares for
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such price and to such person or persons as the Board of Directors may
determine. Such stock shall neither vote nor participate in dividends while held
by the Corporation.
ARTICLE V
EXECUTION OF DOCUMENTS
All contracts, agreements, instruments, bills payable, notes,
checks, drafts, warrants or other obligations of the Corporation shall be made
in the name of the Corporation and shall be signed by such Officer or Officers
as the Board of Directors may from time to time designate. In the absence of
such designation the signatures of the President and Secretary shall suffice.
ARTICLE VI
SEAL
The seal of the Corporation shall contain the name of the
Corporation, the words "Corporate Seal", the year of its organization and the
word "Delaware".
ARTICLE VII
FISCAL YEAR
Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the Corporation shall be the fifty-two (52) or
fifty-three (53) week period ending on the Saturday closest to the last day of
May of each year.
ARTICLE VIII
INDEMNIFICATION
The Corporation shall indemnify all Directors, Officers, and
employees or agents to the fullest extent permitted, and in the manner provided,
by the General Corporation Law of the State of Delaware, as the same now exists
or may hereafter be amended, whenever they are defendants or threatened to be
made defendants in any legal or administrative proceeding by reason of their
relationship with the Corporation. The Corporation shall advance expenses of
litigation to Directors and Officers according to the following procedure:
(i) Actions, Suits or Proceedings 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 or
she is or was or has agreed to become a Director, Officer, employee or
agent of the Corporation, or is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or
her behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he or she acted in good faith and in a manner he
or she reasonably believed to be in or
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not opposed to the best interests of Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his or her 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 meet the standards of conduct set
forth in this subparagraph (i).
(ii) Actions or Suits 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 or she is or was or
has agreed to become a Director, Officer, employee or agent of the
corporation, or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred, by him or her or on his or her
behalf in connection with the defense or settlement of such action or
suit and any appeal therefrom, if he or she acted in good faith and in
a manner he or she 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 to the Corporation for
gross negligence or misconduct in the performance of his or her duty to
the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication
of such liability but in view of all the circumstances of this case,
such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery or such other
court shall deem proper.
(iii) Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Article
VIII, to the extent that a Director, Officer, employee or agent of the
Corporation has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in subparagraphs
(i) and (ii) of this Article VIII, or in the defense of any claim,
issue or matter therein, he or she shall be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
(iv) Determination of Right to Indemnification. Any
indemnification under subparagraphs (i) and (ii) of this Article VIII
(unless ordered by a court) shall be paid by the Corporation unless a
determination is made (a) by the Board of Directors by a majority vote
of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (b) if such quorum is not obtainable,
or, even if obtainable a quorum of disinterested Directors so directs,
by independent legal counsel in a written opinion, or (c) by the
Stockholders, that indemnification of the Director, Officer, employee
or agent is not proper in the circumstances because he or she has not
met the applicable standard of conduct set forth in subparagraphs (i)
and (ii) of this Article VIII.
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(v) Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to
in subparagraphs (i) and (ii) of this Article VIII in defending a
civil, criminal, administrative or investigative action, suit or
proceeding (including all costs, charges and expenses incurred in
preparing for any threatened action, suit or proceeding) shall be paid
by the Corporation in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs,
charges and expenses incurred by a Director or Officer, in his or her
capacity as a Director or Officer (and not in any other capacity in
which service was or is rendered by such person while a Director or
Officer) in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by or on
behalf of the Director or Officer to repay all amounts advanced in the
event that it shall ultimately be determined that such Director or
Officer is not entitled to be indemnified by the Corporation as
authorized in this Article VIII. No security shall be required for such
undertaking and such undertaking shall be accepted without reference to
the recipient's financial ability to make repayment. The repayment of
such charges and expenses incurred by other employees and agents of the
Corporation which are paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as permitted by this
subparagraph (v) may be required upon such terms and conditions, if
any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and subject to the
approval of such Director, Officer, employee or agent of the
Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
(vi) Procedure for Indemnification. Any indemnification under
subparagraphs (i), (ii) or (iii) or advance of costs, charges and
expenses under subparagraph (v) of this Article VIII shall be made,
promptly, and in any event within sixty (60) days, upon the written
request of the Director, Officer, employee or agent directed to the
Secretary of the Corporation. The right to indemnification or advances
as granted by this Article VIII shall be enforceable by the Director,
Officer, employee or agent in any court of competent jurisdiction if
the Corporation denies such request, in whole or in part, or if no
disposition thereof is made within sixty (60) days. Such person's costs
and expenses incurred in connection with successfully establishing his
or her right to indemnification or advances, in whole or in part, and
any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to
enforce a claim for the advance of costs, charges and expenses under
subparagraph (v) under the Article VIII where the required undertaking,
if any, has been received by the Corporation) that the claimant has not
met the standard of conduct set forth in subparagraphs (i) or (ii) of
this Article VIII, but the burden of proving that such standard of
conduct has not been met shall be on the Corporation. Neither failure
of the Corporation (including its Board of Directors, its independent
legal counsel and its Stockholders) to have made the determination
prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in subparagraphs (i) and (ii)
of this Article VIII, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its Stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the
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action or create a presumption that the claimant has not met the
applicable standard of conduct.
(vii) Other Rights; Continuation of Right to Indemnification.
The indemnification provided by this Article VIII shall not be deemed
exclusive of any other rights to which a person seeking indemnification
may be entitled under any law (common or statutory), agreement, vote of
Stockholders, or disinterested Directors or otherwise, both as to
action in his or her official capacity and as to action in another
capacity while holding office or while employed by or acting as agent
for the Corporation, 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 estate, heirs, executors and administrators of such
person. All rights to indemnification under this Article VIII shall be
deemed to be a contract between the Corporation and each Director,
Officer, employee or agent of the Corporation who serves or served in
such capacity at any time while this Article VIII is in effect. No
amendment or repeal of this Article VIII or of any relevant provisions
of the Delaware General Corporation Law or any other applicable laws
shall adversely affect or deny to any Director, Officer, employee or
agent any rights to indemnification which such person may have, or
change or release any obligations of the Corporation, under this
Article VIII with respect to any costs, charges, expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement
which arise out of an action, suit or proceeding based in whole or
substantial part on any act or failure to act, actual or alleged, which
takes place before or while this Article VIII is in effect. The
provisions of this subparagraph (vii) shall apply to any such action,
suit or proceeding whenever commenced, including any such action, suit
or proceeding commenced after any amendment or repeal of this Article
VIII.
(viii) For Purposes of this Article VIII:
(a) "the Corporation" shall include 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, 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, shall
stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving
corporation as he or she would have with respect to such
constituent corporation if its separate existence had
continued;
(b) "other enterprises" shall include employee
benefit plans, including but not limited to any employee
benefit plan of the Corporation;
(c) "serving at the request of the Corporation" shall
include any service which imposes duties on, or involves
services by, a Director, Officer, employee or agent of the
Corporation with respect to an employee benefit plan, its
participants, or beneficiaries, including acting as a
fiduciary thereof;
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(d) "fines" shall include any penalties and any
excise or similar taxes assessed on a person with respect to
an employee benefit plan;
(e) a person who acted in good faith and in a manner
he or she 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
subparagraphs (i) and (ii) of this Article VIII; and
(f) Service as a partner, trustee, or a member of
management or similar committee of a partnership or joint
venture or as a director, officer, employee or agent of a
corporation which is a partner, trustee or joint venturer,
shall be considered service as a director, officer, employee
or agent of the partnership, joint venture, trust or other
enterprise.
(ix) Savings Clause. If this Article VIII or any portion
hereof shall be invalidated on any ground by a court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Director, Officer, employee and agent of the Corporation as to costs,
charges and expenses (including any attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full
extent permitted by any applicable portion of this Article VIII that
shall not have been invalidated and to the full extent permitted by
applicable law.
(x) Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become
a Director, Officer, employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against any
liability asserted against him or her and incurred by him or her or on
his or her behalf in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of
this Article VIII; provided that such insurance is available on
acceptable terms as determined by a vote of a majority of the entire
Board of Directors.
ARTICLE IX
AMENDMENT OF BYLAWS
Subject to any requirements set forth in these Bylaws, these
Bylaws may be amended or repealed, and any new Bylaws may be adopted, by a
majority of the Stockholders entitled to vote or by the Board of Directors.
I do hereby certify that the foregoing is a true, correct and
complete copy of the duly adopted Bylaws of Interstate Brands Corporation as in
force at the date of this certificate.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the corporate seal of said Corporation.
Dated:
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INTERSTATE BRANDS CORPORATION
By:
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Corporate Secretary
