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Exhibit 3(e)
AMENDED AND RESTATED BY-LAWS
OF
BOB EVANS FARMS, INC.
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AMENDED AND RESTATED BY-LAWS
OF
BOB EVANS FARMS, INC.
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
SECTION 1.02. BUSINESS OFFICES. 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
SECTION 2.01. PLACE OF MEETINGS. All meetings of the
stockholders shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting.
SECTION 2.02. ANNUAL MEETINGS. Annual meetings of stockholders
for the purpose of electing directors and for the transaction of such other
proper business as may come before such meetings shall be held on the second
Monday in September if not a legal holiday, and if a legal holiday, then on the
next day following, or on such other date as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting.
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SECTION 2.03. NOTICE OF ANNUAL MEETING. 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 sixty days before the date of the meeting.
SECTION 2.04. LIST OF STOCKHOLDERS. 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 the examination of 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 corporation's principal
office. 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 2.05. SPECIAL MEETINGS. 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 chief
executive officer and shall be called by the chief executive officer or
secretary at the request in writing of two-thirds of the board of directors or
of the holders of a majority of the stock issued and outstanding and entitled to
vote on the date such request was received by the corporation. Such request
shall state the purpose or purposes of the proposed meeting.
SECTION 2.06. NOTICE OF SPECIAL MEETINGS. 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 sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
SECTION 2.07. BUSINESS TRANSACTED AT SPECIAL MEETINGS.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
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SECTION 2.08. QUORUM. 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 the
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 of
record entitled to vote at the meeting.
SECTION 2.09. VOTE REQUIRED. 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 or by-laws a different
vote is required in which case such express provision shall govern and control
the decision of such question.
SECTION 2.10. VOTING RIGHTS; PROXIES. Unless otherwise
provided in the certificate of incorporation, 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 eleven months from its date, unless the
proxy provides for a longer period.
SECTION 2.11. ACTION WITHOUT MEETING. Unless otherwise
provided in the certificate of incorporation, any action required to be taken at
any annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting
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forth the action so taken, shall be signed by all of the holders of outstanding
stock who would be entitled to notice of such meeting.
ARTICLE III
DIRECTORS
SECTION 3.01. NUMBER OF DIRECTORS. The number of directors of
the corporation shall be not less than nine (9) nor more than fifteen (15).
Initially there shall be nine (9) directors and thereafter the number of
directors shall be as provided from time to time in the by-laws, provided that
no amendment to the by-laws decreasing the number of directors shall have the
effect of shortening the term of any incumbent director, and provided further
that no action shall be taken by the directors (whether through amendment of the
by-laws or otherwise) to increase the number of directors as provided in the
by-laws from time to time unless at least eighty percent (80%) of the directors
then in office shall concur in said action. Directors need not be stockholders.
Commencing with the election of directors at the 1986 annual
meeting of stockholders, the board of directors shall be divided into three
classes, designated class I, class II and class III, as nearly equal in number
as possible, and the term of office of directors in one class shall expire at
each annual meeting of stockholders, and in all cases as to each director until
a successor shall be elected and shall qualify, or until his earlier
resignation, removal from office, death or incapacity. Additional directorships
resulting from an increase in number of directors shall be apportioned among the
classes as equally as possible. The initial term of office of directors of class
I shall expire at the annual meeting of stockholders in 1987, that of class II
shall expire at the annual meeting of stockholders in 1988, and that of class
III shall expire at the annual meeting of stockholders in 1989, and in all cases
as to each director until a successor shall be elected and shall qualify, or
until his earlier resignation, removal from office, death or incapacity. At each
annual meeting of stockholders the number of directors equal to the number of
directors of the class whose term expires at the time of such meeting (or, if
less, the number of
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directors properly nominated and qualified for election) shall be elected to
hold office until the third succeeding annual meeting of stockholders after
their election.
SECTION 3.02. VACANCIES. 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, or by a sole
remaining director, and the directors so chosen shall hold office until the next
election of the class for which such directors shall have been chosen 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.
SECTION 3.03. AUTHORITY OF BOARD OF DIRECTORS. The business of
the corporation shall be managed by or under the direction of 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 3.04. NOMINATION. Only persons who are nominated in
accordance with the procedures set forth in these by-laws shall be eligible to
serve as directors. Nominations of persons for election to the board may be made
at a meeting of stockholders (a) by or at the direction of the board of
directors or (b) by any stockholder of the corporation who (i) is a stockholder
of record as of the record date for the annual meeting of stockholders, (ii) is
entitled to vote for the election of directors at such meeting and (iii)
complies with the notice procedures set forth in this Section 3.04. Such
nominations, other than those made by or at the direction of the board, shall be
made pursuant to timely notice in writing to the secretary of the corporation.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than
sixty nor more than ninety days prior to the meeting; provided, however, that in
the event that less than seventy days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the meeting or
such public disclosure was made.
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Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (b) as to
the stockholder giving the notice (i) the name and address, as they appear on
the corporation's books, of such stockholder and (ii) the class and number of
shares of the corporation which are beneficially owned by such stockholder. At
the request of the board, any person nominated by the board for election as a
director shall furnish to the secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible to serve as a director of the
corporation unless nominated in accordance with the procedures set forth in
these by-laws. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws and that the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 3.04, a stockholder shall also comply with all applicable
requirements of the Securities and Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set forth in this
Section 3.04.
SECTION 3.05. PLACE OF MEETINGS. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 3.06. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held immediately after the annual meeting of stockholders
at the same place as such annual meeting is held and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event such meeting is
not held at the time and place provided herein, 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 the board of directors, or as shall be specified
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in a written waiver signed by all of the directors. Other 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. Unless otherwise
restricted by the certificate of incorporation or these by-laws, members of the
board of directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 3.07. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by the chairman of the board, the chief executive
officer or the president and chief operating officer on three days' notice to
each director, either personally or by mail, telephone or facsimile
transmission; special meetings shall be called by the chairman of the board, the
chief executive officer, the president and chief operating officer or the
secretary in like manner and on like notice on the written request of two
directors.
SECTION 3.08. QUORUM. At all meetings of the board of
directors a majority of the directors shall constitute a quorum 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 3.09. ACTION WITHOUT MEETING. 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 of directors 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 of directors or committee.
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SECTION 3.10. COMMITTEES OF DIRECTORS. 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 not less than three 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.
In the absence or disqualification of a member of a committee,
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.
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, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
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 a dissolution; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. 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 3.11. COMMITTEE MINUTES. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
SECTION 3.12. COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the certificate of incorporation or these by-laws, the board of
directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board
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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.
SECTION 3.13. REMOVAL. Notwithstanding any other provisions of
the certificate of incorporation or the by-laws of the corporation (and
notwithstanding the fact that some lesser percentage may be specified by law,
the certificate of incorporation or the by-laws of the corporation), any
director or the entire board of directors of the corporation may be removed from
office at any time, with or without cause, but only by the affirmative vote of
the holders of at least eighty percent (80%) of all of the outstanding shares of
capital stock of the corporation entitled to vote on the election of directors
at a meeting of stockholders called for that purpose, except that if the board
of directors, by an affirmative vote of at least two-thirds (66 2/3%) of the
entire board of directors, recommends removal of a director to the stockholders,
such removal may be effected by the affirmative vote of the holders of at least
a majority of the outstanding shares of capital stock of the corporation
entitled to vote on the election of directors at a meeting of stockholders for
that purpose.
ARTICLE IV
NOTICES
SECTION 4.01. FORM OF NOTICE. Whenever, under the provisions
of the statutes or of the certificate of incorporation or of these by-laws,
notice is required to be given to any stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such 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.
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Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director, such notice may be given personally or by telephone or
facsimile transmission, or given in a writing, addressed to such director, 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.
SECTION 4.02. WAIVER OF NOTICE. 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
SECTION 5.01. OFFICERS. The officers of the corporation shall
be chosen by the board of directors and shall be a chairman of the board, a
chief executive officer, a president and chief operating officer, a
vice-president, a secretary and a treasurer. The chairman of the board must be a
director. The board of directors may also choose additional officers,
vice-presidents (including senior, executive or assistant vice-presidents), and
one or more 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 provides.
SECTION 5.02. ADDITIONAL OFFICERS AND AGENTS. 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 5.03. COMPENSATION. The salaries of all officers and
agents of the corporation shall be fixed by the board of directors.
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SECTION 5.04. TERM; REMOVAL OF OFFICERS. 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.
SECTION 5.05. DUTIES OF THE CHAIRMAN OF THE BOARD. The
chairman of the board shall preside at all meetings of the directors at which he
is present. The chairman shall have such other powers and duties as the
directors shall from time to time assign to him.
SECTION 5.06. DUTIES OF THE CHIEF EXECUTIVE OFFICER. The chief
executive officer of the corporation shall be the senior executive of the
corporation and shall have general control and management of the business
affairs and policies of the corporation. Among other things, he shall direct and
coordinate the development of short-range and long-range goals and objectives,
policies, budgets and operating plans of the corporation and, upon approval by
the board of directors, oversee their interpretation, implementation and
achievement. In conjunction with the board of directors, the chief executive
officer shall establish an organizational hierarchy and delegate authority to
other executives regarding policies, contractual commitments, expenditures and
personnel matters. He shall represent the corporation to its stockholders, the
financial community, industry groups, key customers, governmental
representatives and regulatory agencies and the general public.
If there is no chairman of the board, or during the absence or
disability of the chairman of the board, the chief executive officer shall
exercise all of the powers and discharge all of the duties of the chairman of
the board. If there is no president and chief operating officer, or during the
absence or disability of the president and chief operating officer, the chief
executive officer shall exercise all of the powers and discharge all of the
duties of the president and chief operating officer. The chief executive officer
shall have such other powers and perform such other duties as from time to time
may be conferred upon him by the board of directors.
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SECTION 5.07. DUTIES OF THE PRESIDENT AND CHIEF OPERATING
OFFICER. The president and chief operating officer of the corporation shall
direct and coordinate the activities of the corporation in accordance with the
goals, objectives, policies, budgets and operating plans of the corporation
established by the chief executive officer and the board of directors. He also
shall be responsible for the achievement of short-range and long-range goals and
objectives for the operations, human resources, financial performance and growth
of the corporation. If there is no chief executive officer or during the absence
or disability of the chief executive officer, the president and chief operating
officer shall exercise all of the powers and discharge all of the duties of the
chief executive officer. The president and chief operating officer shall have
such other powers and perform such other duties as from time to time may be
conferred upon him by the board of directors.
SECTION 5.08. DUTIES OF THE VICE-PRESIDENTS. The
vice-presidents shall perform such duties and have such powers as the board of
directors may from time to time prescribe.
SECTION 5.09. DUTIES OF THE SECRETARY. 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, the chief executive officer or the
president and chief operating officer, 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 5.10. DUTIES OF THE ASSISTANT SECRETARY. The assistant
secretary, or if there be more than one, the assistant secretaries in the order
determined by the board of directors (or if there be no
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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.
SECTION 5.11. DUTIES OF THE TREASURER. 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.
He 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 chief executive officer 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.
If required by the board of directors, he shall give the
corporation a bond (which shall be renewed each year) 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 5.12. DUTIES OF THE ASSISTANT TREASURER. 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 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.
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ARTICLE VI
STOCK AND STOCKHOLDERS
SECTION 6.01. CERTIFICATES. 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 of the board of directors, or the president
and chief operating officer 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.
Any of or all the signatures on the certificate may be 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.
SECTION 6.02. LOST CERTIFICATES. The board of directors
(through the corporation's duly authorized officers) 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 that 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 (through the corporation's duly authorized officers) 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.
SECTION 6.03. RECORD DATE. 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
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other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor 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.
SECTION 6.04. REGISTERED STOCKHOLDERS. 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
owner of shares, and shall not be bound to recognize any equitable or other
claim to or 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.
SECTION 6.05. TRANSFERS. Where a certificate evidencing stock
of the corporation is presented to the corporation or its proper agents with a
request to register transfer, the transfer shall be registered as requested if:
1. An appropriate person signs on each certificate so
presented or signs on a separate document an assignment or transfer of shares
evidenced by each such certificate, or signs a power to assign or transfer such
shares, or when the signature of an appropriate person is written without more
on the back of each such certificate; and
2. Reasonable assurance is given that the indorsement of each
appropriate person is genuine and effective; the corporation or its agents may
refuse to register a transfer of shares unless the signature of each appropriate
person is guaranteed by an "eligible guarantor institution" as defined in Rule
17Ad-15 under the Securities Act of 1934 or any successor rule or regulation;
and
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3. All applicable laws relating to the collection of transfer
or other taxes have been complied with; and
4. The corporation or its agents are not otherwise required or
permitted to refuse to register such transfer.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. DIVIDENDS. 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. 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 absolute discretion, deem 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 deem 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.
SECTION 7.02. ANNUAL STATEMENT. 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.
SECTION 7.03. CHECKS. 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.
SECTION 7.04. FISCAL YEAR. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
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SECTION 7.05. SEAL. 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
SECTION 8.01. AMENDMENTS. These by-laws may be amended or
repealed by the board of directors pursuant to the certificate of incorporation
or by affirmative vote of the holders of record of shares entitling them to
exercise a majority of the voting power on such proposal: provided, however,
that the provisions set forth in this Article VIII, in Article II, Sections 2.05
and 2.08 and in Article III, Sections 3.01 and 3.13, herein may not be repealed
or amended in any respect unless such action is approved by the affirmative vote
of the holders of eighty percent (80%) of the stock issued and outstanding and
entitled to vote thereon.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. INDEMNIFICATION AS OF RIGHT FOR DIRECTORS AND
OFFICERS. Each director or officer of the corporation who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director,
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officer, employee or agent, shall be indemnified and held harmless by the
corporation to the fullest extent permitted by Delaware Law against all expense,
liability and loss (including attorneys' fees, judgments, fines, taxes,
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; PROVIDED, HOWEVER, that, except as
provided in Section 9.02 hereof with respect to proceedings to enforce rights to
indemnification, the corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the board. The right to
indemnification conferred in this Section 9.01 shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition (hereinafter an "advancement of expenses");
PROVIDED, HOWEVER, that, if Delaware Law so requires, expenses incurred by an
indemnitee 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 indemnitee, including,
without limitation, service to an employee benefit plan) shall be advanced only
upon delivery to the corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section 9.01 or otherwise.
SECTION 9.02. ENFORCEMENT. If a claim under Section 9.01 is
not paid in full by the corporation within sixty days after a written claim has
been received by the corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall also be entitled to be paid the expense of prosecuting or defending such
suit. It shall be a defense of the corporation in any suit brought by an
indemnitee to enforce a right to indemnification hereunder (but not in a suit to
enforce a right to an advancement of expenses) that the indemnitee has not met
the applicable
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standard of conduct set forth in Delaware Law, and a final adjudication that an
indemnitee has not met such standard shall entitle the corporation to recover
such expenses pursuant to the terms of an undertaking. Neither the failure of
the corporation (including the Board, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
Delaware Law, nor an actual determination by the corporation (including the
Board, independent legal counsel or its stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the corporation to recover an
advancement of expenses, the burden of proving that the indemnitee is not
entitled to be indemnified in any respect, or to such advancement of expenses,
under this Article IX or otherwise shall be on the corporation.
SECTION 9.03. DISCRETIONARY INDEMNIFICATION FOR AGENTS AND
EMPLOYEES. The corporation may, to the extent approved or ratified from time to
time by the board, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the corporation to the fullest extent
contemplated by this Article IX with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
SECTION 9.04. ARTICLE IX EXCLUSIVE. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other sections
of this Article IX shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the corporation's or any other corporation's certificate of incorporation or
by-laws, other charter documents, agreement, vote of stockholders or
disinterested directors or otherwise, or under Delaware Law or any other
applicable statute or regulation, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
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SECTION 9.05. CONTINUATION OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article IX 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, except in any such case to the
extent that any grant of rights to indemnification and advancement of expenses
pursuant to Section 9.03 otherwise provides, and shall be binding upon any
successor to the corporation to the fullest extent permitted by Delaware Law, as
from time to time in effect.
SECTION 9.06. INSURANCE. 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 against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under the
provisions of this Article IX or Delaware Law.
SECTION 9.07. CERTAIN DEFINITIONS. 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 a director or officer of
the corporation "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 or officer with
respect to an employee benefit plan, its participants, or beneficiaries. For
purposes of determining whether a person has met the applicable standard of
conduct set forth in Delaware Law, a person who acted in good faith and in a
manner such person 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."
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SECTION 9.08. SEVERABILITY. In the event that any provision of
this Article IX is determined by a court of competent jurisdiction to require
the corporation to do or to fail to do an act which is in violation of
applicable law, such provision shall be limited or modified in its application
to the minimum extent necessary to avoid a violation of law, and, as so limited
or modified, such provision and the balance of this Article IX shall be
enforceable by an indemnitee in accordance with its terms.
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