Attached files
file | filename |
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8-K - FORM 8-K - SUPERVALU INC | c57581e8vk.htm |
EX-10.3 - EX-10.3 - SUPERVALU INC | c57581exv10w3.htm |
EX-10.4 - EX-10.4 - SUPERVALU INC | c57581exv10w4.htm |
EX-10.2 - EX-10.2 - SUPERVALU INC | c57581exv10w2.htm |
EX-10.6 - EX-10.6 - SUPERVALU INC | c57581exv10w6.htm |
EX-10.5 - EX-10.5 - SUPERVALU INC | c57581exv10w5.htm |
EX-10.7 - EX-10.7 - SUPERVALU INC | c57581exv10w7.htm |
EX-10.1 - EX-10.1 - SUPERVALU INC | c57581exv10w1.htm |
Exhibit 3.1
Adopted: | October 23, 1980 | |||
Amended: | June 27, 1983 | |||
Amended: | December 16, 1986 | |||
Amended: | April 13, 1988 | |||
Amended: | June 30, 1988 | |||
Amended: | February 14, 1990 | |||
Amended: | December 12, 1990 | |||
Amended: | February 16, 1991 | |||
Amended: | June 30, 1992 | |||
Amended: | October 9, 1998 | |||
Amended: | August 14, 2002 | |||
Amended: | February 8, 2006 | |||
Amended: | April 12, 2006 | |||
Amended: | December 6, 2007 | |||
Amended: | October 2, 2008 | |||
Amended: | December 3, 2008 | |||
Amended: | May 6, 2009 | |||
Amended: | July 7, 2009 | |||
Amended: | October 7, 2009 | |||
Amended: | April 15, 2010 |
RESTATED BYLAWS
OF
SUPERVALU INC.
OF
SUPERVALU INC.
Table of Contents
Page | |||
ARTICLE I. Offices, Corporate Seal |
1 | ||
Section 1.01. Registered Office |
1 | ||
Section 1.02. Corporate Seal |
1 | ||
ARTICLE II. Meetings of Stockholders |
1 | ||
Section 2.01. Place and Time of Meetings |
1 | ||
Section 2.02. Annual Meetings |
1 | ||
Section 2.03. Special Meetings |
1 | ||
Section 2.04. Quorum, Adjourned Meetings |
1 | ||
Section 2.05. Organization |
2 | ||
Section 2.06. Order of Business |
2 | ||
Section 2.07. Voting |
2 | ||
Section 2.08. Inspectors of Election |
3 | ||
Section 2.09. Notices of Meetings and Consents |
3 | ||
Section 2.10. Proxies |
3 | ||
Section 2.11. Waiver of Notice |
4 | ||
Section 2.12. Stockholder List |
4 |
-i-
Page | |||
Section 2.13. Fixing Date for Determination of Stockholders of Record |
4 | ||
Section 2.14. Stockholder Action by Written Consent |
4 | ||
Section 2.15. Notice of Stockholder Business and Nominations |
5 | ||
ARTICLE III. Board of Directors |
8 | ||
Section 3.01. General Powers |
8 | ||
Section 3.02. Number, Election and Term of Office |
8 | ||
Section 3.03. Annual Meeting |
10 | ||
Section 3.04. Regular Meetings |
10 | ||
Section 3.05. Special Meetings |
10 | ||
Section 3.06. Notice of Meetings |
10 | ||
Section 3.07. Waiver of Notice |
10 | ||
Section 3.08. Quorum |
10 | ||
Section 3.09. Removal |
10 | ||
Section 3.10. Committees of Directors |
11 | ||
Section 3.11. Written Action |
11 | ||
Section 3.12. Compensation |
11 | ||
Section 3.13. Conference Communications |
11 | ||
Section 3.14. Chairman of the Board |
12 | ||
ARTICLE IV. Standing Committees |
12 | ||
Section 4.01. Standing Committees |
12 | ||
Section 4.02. Executive Committee |
12 | ||
Section 4.03. Leadership Development and Compensation Committee |
13 | ||
Section 4.04. Finance Committee |
13 | ||
Section 4.05. Audit Committee |
13 | ||
Section 4.06. Corporate Governance and Nominating Committee |
13 | ||
ARTICLE V. Officers |
14 | ||
Section 5.01. Number |
14 | ||
Section 5.02. Election, Term of Office and Qualifications |
14 | ||
Section 5.03. Removal and Vacancies |
14 | ||
Section 5.04. President |
14 | ||
Section 5.05. Chief Executive Officer |
14 | ||
Section 5.06. Chief Operating Officer |
14 | ||
Section 5.07. Vice Presidents |
14 | ||
Section 5.08. President Pro Tem |
15 | ||
Section 5.09. Secretary |
15 | ||
Section 5.10. Treasurer |
15 | ||
Section 5.11. Controller |
15 | ||
Section 5.12. Counsel |
15 | ||
Section 5.13. Duties of Other Officers |
15 | ||
Section 5.14. Authority to Execute Agreements |
15 | ||
Section 5.15. Duties of Officers May be Delegated |
16 | ||
Section 5.16 Compensation |
16 |
-ii-
Page | |||
ARTICLE VI. Shares and Their Transfer |
16 | ||
Section 6.01. Certificates for Stock |
16 | ||
Section 6.02. Issuance of Stock |
16 | ||
Section 6.03. Partly Paid Stock |
17 | ||
Section 6.04. Transfer of Stock |
17 | ||
Section 6.05. Facsimile Signatures |
17 | ||
Section 6.06 Lost, Stolen, Destroyed or Mutilated Certificates |
17 | ||
ARTICLE VII. Dividends, Surplus, Etc. |
18 | ||
Section 7.01. Dividends |
18 | ||
Section 7.02. Use of Surplus, Reserve |
18 | ||
ARTICLE
VIII. Books and Records, Audit, Fiscal Year |
18 | ||
Section 8.01. Books and Records |
18 | ||
Section 8.02.
Audit |
18 | ||
Section 8.03. Fiscal Year |
18 | ||
ARTICLE IX. Indemnification |
18 | ||
Section 9.01. Statutory Indemnification |
18 | ||
Section 9.02. Additional Indemnification |
19 | ||
Section 9.03. Procedure for Indemnification |
19 | ||
Section 9.04. Non-Exclusive |
20 | ||
Section 9.05. Subsidiary Corporations |
21 | ||
ARTICLE X. Miscellaneous |
21 | ||
Section 10.01. Periods of Time |
21 | ||
Section 10.02. Voting Securities Held by the Corporation |
21 | ||
Section 10.03. Purchase and Sale of Securities |
21 | ||
ARTICLE XI. Amendments |
22 | ||
Section 11.01. |
22 |
-iii-
RESTATED BYLAWS
OF
SUPERVALU INC.
OF
SUPERVALU INC.
ARTICLE I.
Offices, Corporate Seal
Offices, Corporate Seal
Section 1.01. Registered Office. The registered office of the Corporation in Delaware
shall be at 100 West Tenth Street, Wilmington, Delaware, and the resident agent in charge thereof
shall be The Corporation Trust Company.
Section 1.02. Corporate Seal. The corporate seal shall be circular in form and have
inscribed thereon, the name of the Corporation, the year of its incorporation (1925), and the word
Delaware.
ARTICLE II.
Meetings of Stockholders
Meetings of Stockholders
Section 2.01. Place and Time of Meetings. Meetings of the stockholders may be held at
such place and at such time as may be designated by the Board of Directors. In the absence of a
designation of place, meetings shall be held at the principal executive office of the Corporation.
In the absence of a designation of time, the meetings shall be held at 10:00 a.m. local time at the
place where the meeting is to be held. Any previously scheduled annual or special meeting of the
stockholders may be postponed by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such meeting.
Section 2.02. Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of any other proper business
shall be held at such date, time and place as may be fixed by resolution of the Board of Directors.
Section 2.03. Special Meetings. Special meetings of the stockholders for any purpose
or purposes shall be called only by the Secretary (but only at the written request of a majority of
the total number of directors), the Chairman of the Board or the President. Stockholders shall have
no power or right to call special meetings. The call of any special meeting shall state the purpose
or purposes of the meeting. Business transacted at any special meeting shall be limited to the
purposes stated in the call of such meeting.
Section 2.04. Quorum, Adjourned Meetings. The holders of a majority of the shares
outstanding and entitled to vote shall constitute a quorum for the transaction of business at any
annual or special meeting. If a quorum is not present at a meeting, those present shall adjourn to
such day as they shall agree upon by majority vote; provided, however, that any
annual or special meeting of stockholders, whether or not a quorum is present, may be adjourned
from time to time by the Chairman of the meeting.
Notice of any adjourned meeting need not be given if the time and place thereof are announced at
the meeting at which the adjournment is taken. At adjourned meetings, any business may be
transacted which might have been transacted at the meeting as originally noticed. If a quorum is
present, the stockholders may continue to transact business until adjournment notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Section 2.05. Organization. At each meeting of the stockholders, the Chairman of the
Board or such persons delegate shall act as Chairman; in the event the Chairman is absent and such
person has not designated a Chairman, the President, if also designated as CEO, shall act as
Chairman, or the President, if also designated as CEO, shall designate a Chairman; and the
Secretary of the Corporation or in such persons absence an Assistant Secretary or in such persons
absence any person whom the Chairman of the meeting shall appoint shall act as Secretary of the
meeting.
Section 2.06. Order of Business. The order of business at all meetings of the
stockholders shall be determined by the Chairman of the meeting. The Chairman of the meeting shall
convene and adjourn the meeting and determine and announce the times at which the polls shall be
opened and closed at the meeting.
Section 2.07. Voting. Except as may be provided in a resolution or resolutions of the
Board of Directors establishing a series of Preferred Stock, and except as may be otherwise
provided in the Certificate of Incorporation of the Corporation, each stockholder of the
Corporation entitled to vote at a meeting of stockholders shall have one vote in person or by
written proxy for each share of stock having voting rights held by him and registered in such
persons name on the books of the Corporation. Upon the request of any stockholder, the vote upon
any question before a meeting shall be by written ballot, and all elections of directors shall be
by written ballot. All questions at a meeting shall be decided by a majority vote of the number of
shares entitled to vote represented at the meeting at the time of the vote except where otherwise
required by statute, the Certificate of Incorporation or these Bylaws.
Persons holding stock in fiduciary capacity shall be entitled to vote the shares so held.
Unless the Secretary of the Corporation has been furnished with a copy of governing instruments or
orders which would cause other rules to be applicable, the following rules shall govern the voting
of shares standing of record in the names of two or more persons (whether joint tenants, tenants in
common, tenants by the entirety, fiduciaries, members of a partnership, or otherwise) or shares
held in a fiduciary capacity in which two or more persons have the same fiduciary relationship
respecting such shares:
(i) | if only one person shall vote, such persons act shall bind all; | ||
(ii) | if more than one person shall vote, the act of the majority voting shall bind all; | ||
(iii) | if more than one person shall vote, but the votes shall be evenly split on any particular matter, then, except as otherwise provided by statute, each fraction may vote the shares in question proportionately. |
Section 2.08. Inspectors of Election. For each meeting of the stockholders, the
Chairman of such meeting shall appoint one or more inspectors of election to act. Each inspector of
election so appointed shall first subscribe an oath or affirmation to execute the duties of an
inspector of election at such meeting with strict impartiality and according to the best of such
persons ability. Such inspectors of election, if any, shall take charge of the ballots at such
meeting and after the balloting on any question shall count the ballots and shall make a report in
writing to the Secretary of such meeting of the results thereof. An inspector of election need not
be a stockholder of the Corporation, and any officer or employee of the Corporation may be an
inspector of election on any question other than a vote for or against such persons election to
any position with the Corporation or on any other question in which such person may be directly
interested.
Section 2.09. Notices of Meetings and Consents. Every stockholder may furnish the
Secretary of the Corporation with an address at which notices of meetings and all other corporate
communications may be served on or mailed to him. In the absence of such address, the address on
the corporate share registry maintained by the transfer agent shall be sufficient for purposes of
the hereinafter described notice. Except as otherwise provided by the Certificate of Incorporation
or by statute, a written notice of each annual or special meeting of stockholders shall be given
not less than 10 nor more than 60 days before the date of such meeting to each stockholder of
record of the Corporation entitled to vote at such meeting by delivering such notice of meeting to
him personally or depositing the same in the United States mail, postage prepaid, directed to him
at the post office address as provided above. Service of notice is complete upon mailing. Personal
delivery to any officer of a corporation or association or to any member of a partnership is
delivery to such corporation, association or partnership. Every notice of a meeting of stockholders
shall state the place, date and hour of the meeting and the purpose or purposes for which the
meeting is called.
Section 2.10. Proxies. Each stockholder entitled to vote at a meeting of stockholders
or consent to corporate action without a meeting may authorize another person or persons to act for
him by proxy by an instrument executed in writing. If any such instrument designates two or more
persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall
be present, then that one shall have and may exercise all of the powers conferred by such written
instrument upon all of the persons so designated unless the instrument shall otherwise provide.
Section 2.11. Waiver of Notice. Notice of any annual or special meeting may be waived
either before, at or after such meeting in writing signed by the person or persons entitled to the
notice. Attendance of a person at a meeting 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 transacting of any business because the meeting is not lawfully called or
convened. 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.
Section 2.12. Stockholder List. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder.
Section 2.13. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action (other than the expression of consent to corporate action in writing without a meeting of
stockholders) , the Board of Directors shall fix, in advance, a record date, which may not be more
than 60 or not less than 10 days before the date of such meeting, nor more than 60 days prior to
any other action.
(b) 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 2.14. Stockholder Action by Written Consent. In order that the Corporation
may determine the stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of Directors, and which
date shall not be more than 10 days after the date upon which the resolution fixing the record date
is adopted by the Board of Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the Board of Directors within 10 days
of the date on which such a request is received, the record date for determining stockholders
entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by applicable law,
shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporations registered office shall be by hand or certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the resolution taking such
prior action.
Section 2.15. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders. (1) Nominations of persons for election to the
Board of Directors of the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (A) pursuant to the Corporations
notice of meeting, (B) by or at the direction of the Board of Directors or (C) by any stockholder
of the Corporation who was a stockholder of record at the time of giving of notice provided for in
this Section 2.15, who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 2.15.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (C) of paragraph (a) (1) of this Section 2.15, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation and such other
business must be a proper matter for stockholder action. To be timely, a stockholders notice
shall be delivered to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 120th day nor earlier than the close of business on the 150th day
prior to the first anniversary of the preceding years annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the 150th day prior to such annual meeting and not later than
the close of business on the later of the 120th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is first made. In no
event shall the public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholders notice as described above.
A stockholders notice to be proper must include (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a director (i) the name, age, business address
and residence address of such person, (ii) the class, series and number of any shares of stock of
the Corporation that are beneficially owned or owned of record by such person, (iii) the date or
dates such shares were acquired and the
investment intent of such acquisition, (iv) a completed and signed questionnaire,
representation and agreement required by paragraph (a) (5) of this Section 2.15, and (v) all
other information relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor
provision) under the Securities Exchange Act of 1934, as amended (the Exchange Act) and the
rules thereunder (including such persons written consent to being named in the proxy statement as
a nominee and to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a description of such business, the reasons for
conducting such business at the meeting and any material interest in such business of such
stockholder and any Stockholder Associated Person (as defined below) , individually or in the
aggregate, including any anticipated benefit to the stockholder or the Stockholder Associated
Person therefrom; (C) as to the stockholder giving the notice and any Stockholder Associated
Person, (i) the class, series and number of all shares of stock of the Corporation which are owned
by such stockholder and by such Stockholder Associated Person, if any, (ii) the nominee holder
for, and number of, shares owned beneficially but not of record by such stockholder and by any such
Stockholder Associated Person, and (iii) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding (including any short position or any borrowing or lending
of shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or
benefit of share price changes for, or to increase or decrease the voting power of, such
stockholder or any such Stockholder Associated Person with respect to any share of stock of the
Corporation; (D) as to the stockholder giving the notice and any Stockholder Associated Person
covered by clauses (B) or (C) of this paragraph (a) (2) of this Section 2.15, the name and
address of such stockholder, as they appear on the Corporations stock ledger, and current name and
address, if different, and of such Stockholder Associated Person; and (E) to the extent known by
the stockholder giving the notice, the name and address of any other stockholder supporting the
nominee for election or reelection as a director or the proposal of other business on the date of
such stockholders notice.
(3) Notwithstanding anything in the second sentence of paragraph (a) (2) of this Section
2.15 to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public announcement naming all of the
nominees for director or specifying the size of the increase Board of Directors made by the
Corporation at least 100 days prior to the first anniversary of the preceding years annual
meeting, a stockholders notice required by this Section 2.15 shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation not later than the
close of business on the 10th day following the day on which such public announcement is first made
by the Corporation.
(4) For purposes of this Section 2.15, Stockholder Associated Person of any stockholder
shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such
stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or
beneficially by such stockholder and (iii) any person controlling, controlled by or under common
control with such Stockholder Associated Person.
(5) To be eligible to be a nominee for election or reelection as a director of the
Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of
notice under this Section 2.15) to the Secretary at the principal executive offices of the
Corporation a written questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination is being made
(which questionnaire shall be provided by the Secretary upon written request) and a written
representation and agreement (in the form provided by the Secretary upon written request) that
such person (A) is not and will not become a party to (i) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any person or entity as to
how such person, if elected as a director of the Corporation, will act or vote on any issue or
question (a Voting Commitment) that has not been disclosed to the Corporation or (ii) any
Voting Commitment that could limit or interfere with such persons ability to comply, if elected as
a director of the Corporation, with such persons fiduciary duties under applicable law; (B) is
not and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein; and (C) in such persons individual capacity and on behalf of any person
or entity on whose behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with all applicable publicly disclosed corporate
governance, conflict of interest, confidentiality and stock ownership and trading policies and
guidelines of the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (A) by or at the direction of the Board of Directors or (B) by
any stockholder of the Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.15, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 2.15. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case may be) , for
election to such position(s) as specified in the Corporations notice of meeting, if the
stockholders notice required by paragraph (a) (2) of this Section 2.15 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later
than the close of business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event
shall the public announcement of an adjournment of a special meeting commence a new time period for
the giving of a stockholders notice as described above.
(c) General. (1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.15 shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 2.15. Except as otherwise
provided by law, the Chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in this Section 2.15 and, if any proposed
nomination or business is not in compliance with this Section 2.15, to declare that such defective
proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.15, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.15, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.15. Nothing in this Section
2.15 shall be deemed to affect any rights of (i) stockholders to request inclusion of proposals
in the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) the
holders of any series of Preferred Stock to elect directors under specified circumstances.
ARTICLE III.
Board of Directors
Board of Directors
Section 3.01. General Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors. The Board of Directors may delegate its authority,
subject to its reasonable supervision, to any committee, officer or agent and grant the power to
sub-delegate.
Section 3.02. Number, Election and Term of Office.
(a) Number: The Board of Directors currently consists of 13 members and the number of
directors may be increased or decreased from time to time by resolution of a majority of the whole
Board of Directors or of the holders of at least 75% of the stock of the Corporation entitled to
vote, considered for the purpose as one class.
(b) Election: Except as otherwise provided by law or by these Bylaws, the directors of the
Corporation shall be elected at the Annual Meeting of stockholders in each year. Except as provided
in paragraph (d) of this Section 3.02, each director shall be elected by the vote of the
majority of the votes cast with respect to the director at any meeting for the election of
directors at which a quorum is present, provided that if the number of nominees exceeds the number
of directors to be elected, the directors shall be elected by the vote of a plurality of
the shares represented in person or by proxy at any such meeting and entitled to vote on the
election of directors. For purposes of this paragraph, a majority of the votes cast means that the
number of shares voted for a director must exceed the number of votes cast against that
director. If a director is not elected, the director shall offer to tender his or her resignation
to the Board of Directors. The Corporate Governance and Nominating Committee will make a
recommendation to the Board of Directors on whether to accept or reject the resignation, or whether
other action should be taken. The Board of Directors will act on the Committees recommendation
and publicly disclose its decision and the rationale behind it within 90 days from the
date of the certification of the election results. The director who tenders his or her
resignation will not participate in the Board of Directors decision.
(c) Annual Election: Commencing with the 2009 Annual Meeting of Stockholders, directors shall
be elected annually for terms expiring at the next annual meeting of stockholders and until their
successors shall be duly elected and qualified, except that any director at the 2009 Annual Meeting
of Stockholders whose term expires at the 2010 Annual Meeting of Stockholders or the 2011 Annual
Meeting of Stockholders shall continue to hold office until the end of the term for which such
director was elected and until such directors successor shall be duly elected and qualified
(subject to their earlier death, resignation, retirement, disqualification or removal). From and
after the 2011 Annual Meeting of Stockholders, all directors will stand for election annually. If,
for any cause, the Board of Directors shall not have been elected at an annual meeting of
stockholders, they may be elected as soon thereafter convenient at a special meeting of
stockholders called for that purpose in the manner provided in these Bylaws.
(d) Vacancies: Newly Created Directorships If the office of any director becomes vacant at
any time by reason of death, resignation, retirement, disqualification, removal from office or
otherwise, or if any new directorship is created by any increase in the authorized number of
directors, a majority of the directors then in office, although less than a quorum, or the sole
remaining director, may choose a successor to fill the newly created directorship, and the director
so chosen shall hold office subject to the provisions of these Bylaws, until the next Annual
Meeting of Stockholders or until his or her successor shall have been elected and qualified. At
such next Annual Meeting the stockholders shall elect a director to fill the balance of the
unexpired term of the director whose place was originally vacated or the term established by the
Board pursuant to subsection (a) above.
(e) Amendment: Notwithstanding Article XI of these Bylaws, no provision of this Section 3.02
may be amended or rescinded except by the affirmative vote of the holders of at least 75% of the
stock of the Corporation entitled to vote, considered for the purpose as one class, or by a
majority of the whole Board of Directors.
Section 3.03. Annual Meeting. As soon as practicable after each annual election of
directors, the Board of Directors shall meet at the same place as the annual meeting of
shareholders or at the principal executive office of the Corporation, or at such other place
previously designated by the Board of Directors, for the purpose of electing the officers of the
Corporation and for the transaction of such other business as may come before the meeting.
Section 3.04. Regular Meetings. Regular meetings of the Board of Directors shall be
held from time to time at such time and place as may be fixed by resolution adopted by a majority
of the total number of directors.
Section 3.05. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President, or by any two of the directors and shall be
held from time to time at such time and place as may be designated in the notice of such meeting.
Section 3.06. Notice of Meetings. No notice need be given of any annual or regular
meeting of the Board of Directors. Notice of each special meeting of the Board of Directors shall
be given by the Secretary who shall give at least three (3) days notice thereof by mail or at
least twenty-four (24) hours notice thereof to each director by telephone, telegram or in person.
Notice shall be effective upon dispatch of a letter or telegram (properly addressed to the
director) or upon delivery of written or telephoned notice to a person at the regular business or
residence address of the director even if such notice is not personally received by the director.
Section 3.07. Waiver of Notice. Notice of any meeting of the Board of Directors may
be waived either before, at or after such meeting in writing signed by each director so waiving
notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purposes of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the directors need be specified in any written waiver of notice.
Section 3.08. Quorum. A majority of the total number of directors shall constitute a
quorum for the transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors unless these Bylaws
require a greater number.
Section 3.09. Removal. Any director may be removed from office at any meeting of the
stockholders, with or without cause; provided, however, that any director in a
class of directors may be removed from office at any meeting of the stockholders, but only for
cause. If one or more directors be so removed, new director(s) may be elected at the same meeting
Section 3.10. Committees of Directors.
(a) The Board of Directors may, by resolution adopted by a majority of the total number of
directors, designate one or more committees in addition to the committees established pursuant to
Article IV of these Bylaws, each to consist of one or more of the directors of the Corporation,
which, to the extent provided in the resolution, may exercise the powers of the Board of Directors
in management of the business and affairs of the Corporation and may authorize the corporate seal
to be affixed to all papers that may require it. The Board of Directors shall elect the directors
to serve on each Committee and 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. Such
committee or committees shall have such name or names as may be determined by the resolution
adopted by the directors. The chairman of each committee shall act as secretary of the meeting and
prepare minutes of proceedings where formal action is taken by the committee, and each committee
shall report their actions and recommendations to the Board of Directors when required.
(b) The provisions of Section 3.06 through 3.08 of these Bylaws with respect to notices of
meetings and quorums shall also be applicable to meetings of committees, except as otherwise
provided in the Bylaws or resolutions establishing a particular committee. Special meetings of any
committee shall be called at the request of any member or by the President or Chairman of the
Board.
Section 3.11. Written Action. Any action required or permitted to be taken at a
meeting of the Board of Directors or any committee thereof may be taken without a meeting if all
directors or committee members consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or committee. Such action shall be deemed
to have been taken upon the effective date appearing in said writing, notwithstanding the fact that
some or all of the directors may have signed on a date other than the effective date.
Section 3.12. Compensation. Directors who are not salaried officers of this
Corporation may receive such fixed sum per Board or Committee meeting attended or fixed annual sum
and such other forms of compensation as may be determined by resolution of the Board of Directors.
All directors shall receive their expenses, if any, of attendance at meetings of the Board of
Directors or any committee thereof. Any director may serve the Corporation in any other capacity
and receive proper compensation therefor.
Section 3.13. Conference Communications. Directors may participate in any meeting of
the Board of Directors, or of any duly constituted committee thereof, by
means of a conference telephone conversation or other comparable communication technique whereby
all persons participating in the meeting can hear and communicate to each other. For the purposes
of establishing a quorum and taking any action at the meeting, such directors participating
pursuant to this Section 3.13 shall be deemed present in person at the meeting; and the place of
the meeting shall be the place of origination of the conference telephone conversation or other
comparable communication technique.
Section 3.14. Chairman of the Board. The non-employee directors of the Board of Directors
shall elect from their number a Chairman of the Board. The Chairman shall be an independent
non-employee director. The Chairman shall preside at all meetings of the directors and shall have
such other duties as may be prescribed, from time to time, by the Board of Directors. The Chairman
shall serve for a term ending (a) at the time determined by the Board of Directors at the time of
election or (b) upon his or her earlier death, resignation, removal or disqualification as an
independent director. The Chairman may be removed as Chairman at any time with or without cause by
a majority of the non-employee directors. The Chairman of the Board shall not be deemed to be an
officer of the Corporation as a result of such title.
ARTICLE IV.
Standing Committees
Standing Committees
Section 4.01. Standing Committees. The Corporation shall have such standing
committees of the Board of Directors as are provided in Article IV of these Bylaws. The Chairman of
each standing committee shall be appointed by vote of a majority of the whole Board of Directors.
The provisions of Section 3.10 of the Bylaws shall govern all standing committees, except as may be
otherwise provided in the Bylaw establishing the committee. Each standing committee shall perform
the duties specified in these Bylaws and shall have such other responsibilities and authority as
may from time to time be assigned by the Board of Directors.
Section 4.02. Executive Committee.
(a) Between sessions of the Board of Directors, the Executive Committee shall have, and may
exercise, all of the powers of the Board of Directors in the management and affairs of the
Corporation, including the power to authorize the seal of the Corporation to be affixed to all
papers which may require it, except the Executive Committee shall have no power or authority to (i)
adopt an agreement of merger or consolidation, (ii) recommend to the stockholders the sale, lease
or exchange of all or substantially all of the Corporations property and assets, (iii) recommend
to the stockholders a dissolution of the Corporation or revocation of a dissolution, or (iv) amend
the Certificate of Incorporation or the Bylaws of the Corporation. The Executive Committee shall
have the power and authority to declare a dividend and to authorize the issuance of stock.
(b) At least one member of the Executive Committee shall be a director of the Corporation who
is not an employee and no meeting of the Committee shall be deemed to have a quorum unless at least
one such member is present. Action by the Executive Committee may be taken only by the unanimous
vote of the members present at a meeting in which a quorum is present. The chief executive officer
shall be a member of the Executive Committee and shall preside at its meetings in the absence of
its Chairman.
Section 4.03. Leadership Development and Compensation Committee. The Leadership
Development and Compensation Committee shall provide a general review of the Corporations
compensation and benefit plans to insure they meet corporate objectives. It shall perform such
duties and responsibilities as may from time to time be assigned to it by the Board of Directors.
All members of the Committee shall be directors who are not employees of the Corporation.
Section 4.04. Finance Committee. The Finance Committee shall act in an advisory
capacity and make its recommendations to the management of the Corporation and to the Board of
Directors on corporate fiscal matters. It shall perform such duties and responsibilities as may
from time to time be assigned to it by the Board of Directors.
Section 4.05. Audit Committee.
(a) The Audit Committee shall recommend to the whole Board of Directors the selection of
independent certified public accountants to audit annually the books and records of this
Corporation and shall review the activities and the reports of the independent certified public
accountants and shall report the results of such review to the whole Board of Directors. The Audit
Committee shall also monitor the internal audit controls of the Corporation.
(b) The Audit Committee shall be comprised solely of directors independent of management and
free from any relationship that, in the opinion of the Board of Directors, would interfere with the
exercise of independent judgment as a Committee member.
Section 4.06. Corporate Governance and Nominating Committee. The Corporate Governance
and Nominating Committee shall review and make its recommendations to the whole Board of Directors
regarding nominations of persons to serve on the Board of Directors, and shall have such other
duties and responsibilities as may from time to time be assigned to it by the Board of Directors.
ARTICLE V.
Officers
Officers
Section 5.01. Number. The officers of the Corporation shall consist of a President, a
Treasurer and a Secretary, and, if elected, such additional officers as described in this Article
V. The directors may designate one or more regional or divisional Presidents and Vice Presidents
who shall not be officers of this Corporation. Any person may hold two or more offices except
President and Vice President.
Section 5.02. Election, Term of Office and Qualifications. At each annual meeting of
the Board of Directors, all officers, from within or without their number, shall be elected;
however, the Board may elect additional officers at any Board meeting. Such officers shall hold
office until the next annual meeting of the directors or until their successors are elected and
qualified or until such office is eliminated by a vote of the majority of all directors.
Section 5.03. Removal and Vacancies. Any officer may be removed from office by a
majority vote of the total number of directors with or without cause. A vacancy among the officers
by death, resignation, removal, or otherwise may be filled for the unexpired term by the Board of
Directors.
Section 5.04. President. The President shall have such duties as may, from time to time be
prescribed by the Board of Directors and may be designated by the Board of Directors as the Chief
Executive Officer. In the absence of the Chairman of the Board the President, if also designated as
CEO, shall preside at all meetings of the directors.
Section 5.05. Chief Executive Officer. The Chief Executive Officer shall be the
principal executive officer of the Corporation and shall be responsible for the general management,
direction and control of all of the business and affairs of the Corporation. The Chief Executive
Officer shall have such other authority and duties as the Board of Directors may prescribe. The
Chief Executive Officer shall report to the Board of Directors and be responsible to them.
Section 5.06. Chief Operating Officer. The Chief Operating Officer shall be
responsible for the daily operations of the Corporations business and shall have such other
authority and duties as the Board of Directors or the Chief Executive Officer may prescribe. The
Chief Operating Officer shall report to the Chief Executive Officer if the Chief Executive Officer
is not also serving as the Chief Operating Officer.
Section 5.07. Vice Presidents. Each Vice President shall have such powers and shall
perform such duties as may be prescribed by the Board of Directors or by the Chief Executive
Officer. The following categories of Vice Presidents may be elected by the Board of Directors:
(i) | Executive Vice Presidents, | ||
(ii) | Senior Vice Presidents, or | ||
(iii) | Vice Presidents including Group Vice Presidents. |
Section 5.08. President Pro Tem. In the absence or disability of the President, the
Board of Directors may appoint a President Pro Tem who shall have all the powers and duties of the
President and shall serve during the aforesaid absence or disability.
Section 5.09. Secretary. The Secretary shall be secretary of and shall attend all
meetings of the stockholders and the Board of Directors and shall record the proceedings of such
meetings in the minute book of the Corporation. The Secretary shall give proper notice of meetings
of stockholders and Board of Directors. The Secretary shall keep the seal of the Corporation. The
Secretary shall perform such other duties as may from time to time be prescribed by the Board of
Directors or by the President or the Chairman.
Section 5.10. Treasurer. The Treasurer or such persons delegate shall keep accurate
accounts of all moneys of the Corporation received or disbursed. The Treasurer shall have power to
endorse for deposit all notes, checks and drafts received by the Corporation. The Treasurer shall
disburse the funds of the Corporation as ordered by the directors, making proper vouchers therefor.
The Treasurer shall render to the President and the Board of Directors whenever required an account
of all his or her transactions as Treasurer and of the financial condition of the Corporation and
shall perform such other duties as may from time to time be prescribed by the Board of Directors or
by the President or the Chairman.
Section 5.11. Controller. The duties of the Controller shall be to maintain adequate
records and books of account and control of all assets, liabilities and transactions of this
Corporation; to see that adequate audits thereof are currently and regularly made; and, in
conjunction with other officers and department heads, to initiate and enforce adequate accounting
measures and procedures. The Controller shall perform such other duties as the Board of Directors
may from time to time prescribe or require. The Controllers duties and powers shall extend to all
subsidiary corporations.
Section 5.12. Counsel. The Counsel shall be the legal adviser of the Corporation and
shall receive such salary for his or her services as the Board of Directors may fix.
Section 5.13. Duties of Other Officers. Assistant Vice Presidents, Assistant
Secretaries, and Assistant Treasurers elected by the Board of Directors shall have the power and
authority and may perform all the duties of a Vice President, the Secretary, or the Treasurer,
respectively. The duties of such other officers and agents as the Board of Directors may designate
shall be set forth in the resolution creating such office or by subsequent resolution.
Section 5.14. Authority to Execute Agreements. The Chairman of the Board, President,
Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and Group Vice Presidents are
hereby authorized to execute or cause to be executed in the name and on behalf of this Corporation,
all contracts, agreements, deeds, mortgages,
bonds, options, leases, lease and other guarantees of the obligations of others, including
subsidiary corporations and customers, stock transfer documents, and such other instruments as may
be necessary or desirable in the conduct of the business of the Corporation; and said officers are
further authorized to sign and affix, or cause to be signed and affixed, the seal of the
Corporation on any instrument requiring the same, which seal shall be attested by the signature of
the Secretary, the Treasurer, any Assistant Secretary or any Assistant Treasurer.
Section 5.15. Duties of Officers May be Delegated. In the case of the absence or
disability of any officer of the Corporation or for any other reason deemed sufficient by the Board
of Directors, it may delegate such officers powers or duties to any other officer or to any
director during such absence or disability.
Section 5.16. Compensation. The officers of the Corporation shall receive such
compensation for their services as may be determined from time to time by resolution of the Board
of Directors or by one or more committees to the extent so authorized from time to time by the
Board of Directors.
ARTICLE VI.
Shares and Their Transfer
Shares and Their Transfer
Section 6.01. Certificates for Stock. The Corporations shares of stock shall be
represented by certificates, provided that the Board of Directors may, subject to the limits
imposed by law, provide by resolution or resolutions that some or all of any or all classes or
series shall be uncertificated shares. Certificates for shares of stock of the Corporation shall be
in such form as shall be prescribed by the Board of Directors. Certificates for such shares shall
be numbered in the order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairperson of the Board, the President or a Vice President, and by the
Secretary or an Assistant Secretary and the seal of the Corporation shall be affixed thereto.
Uncertificated shares of the Corporations stock that are issued by the Corporation shall be
evidenced by entries on the books and records of the Corporation established and maintained for
such purpose. Every certificate surrendered to the Corporation for exchange or transfer shall be
cancelled, and no new certificate or certificates shall be issued in exchange for any existing
certificate, or if uncertificated shares are to be issued pursuant to such exchange or transfer, no
entry shall be made on the books and records of the Corporation relating to such exchange or
transfer, until such certificate shall have been so cancelled, except in cases provided for in
Section 6.06 below.
Section 6.02. Issuance of Stock. The Board of Directors is authorized to cause to be
issued shares of the Corporation up to the full amount authorized by the Certificate of
Incorporation in such amounts and for such consideration as may be determined by the Board of
Directors.
Section 6.03. Partly Paid Stock. The Corporation may issue the whole or any part of
its stock as partly paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each certificate issued to represent any such partly paid stock,
the total amount of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid stock, the Corporation shall declare a
dividend upon partly paid stock of the same class, but only upon the basis of the percentage of the
consideration actually paid thereon. The Board of Directors may, from time to time, demand payment,
in respect of each share of stock not fully paid, of such sum of money as the necessities of the
business may, in the judgment of the Board of Directors, require, not exceeding in the whole the
balance remaining unpaid on such stock, and such sum so demanded shall be paid to the Corporation
at such times and by such installments as the directors shall direct. The directors shall give
written notice of the time and place of such payments, which notice shall be mailed at least 30
days before the time for such payment, to each holder of or subscriber for stock which is not fully
paid at such persons last known post office address or such persons last known address on the
stock registry.
Section 6.04. Transfer of Stock. Transfer of stock on the books of the Corporation
may be authorized only by the registered holder, the stockholders legal representative or the
stockholders duly authorized attorney-in-fact and upon surrender of the certificate or the
certificates for such stock. The Corporation may treat as the absolute owner of stock of the
Corporation the person or persons in whose name stock is registered on the books and records of the
Corporation. The Board of Directors may appoint one or more transfer agents, who shall keep the
stock ledger and transfer book for the transfer of stock of the Corporation, and one or more
registrars, and may require all certificates of stock to bear the signature of such transfer agents
and of such registrars.
Section 6.05. Facsimile Signatures. Whenever any certificate is countersigned by a
transfer agent or by a registrar other than the Corporation or its employee, then the signatures of
the officers or agents of the Corporation may be a facsimile. Where a certificate is to bear the
signature of a transfer agent and a registrar, the signature of one, but not both, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on any such certificate shall cease to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation as though the
person who signed such certificate or whose facsimile signature or signatures had been placed
thereon were such officer, transfer agent or registrar at the date of issue.
Section 6.06.
Lost, Stolen, Destroyed or Mutilated Certificates. The Corporation may
issue a new stock certificate of stock in the place of any certificate theretofore issued by it
alleged to have been lost, stolen, destroyed or mutilated, or if the Board of Directors has
designated that such stock no longer be certificated, by recording the ownership of such shares on
the books and records of the Corporation maintained for such purpose. The Board of Directors may
require the owner of the allegedly lost, stolen or destroyed certificate, or the owners legal
representatives, to give the Corporation such bond or such surety or sureties as the board of
directors, in its sole
discretion, deems sufficient 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 such new
certificate and, in the case of a certificate alleged to have been mutilated, to surrender the
mutilated certificate.
ARTICLE VII.
Dividends, Surplus, Etc.
Dividends, Surplus, Etc.
Section 7.01. Dividends. The Board of Directors may declare dividends on its capital
stock from the Corporations surplus, or if there be none, out of its net profits for the current
fiscal year, and/or the preceding fiscal year in such amounts as in its opinion the condition of
the affairs of the Corporation shall render it advisable unless otherwise restricted by law.
Section 7.02. Use of Surplus, Reserve. The Board of Directors may use any of the
Corporations property or funds, unless such would cause an impairment of capital, in purchasing
any of the stock, bonds, debentures, notes, scrip or other securities or evidences of indebtedness
of the Corporation. The Board of Directors may from time to time set aside from corporate surplus
or net profits such sums as it deems proper as a reserve fund for any purpose.
ARTICLE VIII.
Books and Records, Audit, Fiscal Year
Books and Records, Audit, Fiscal Year
Section 8.01. Books and Records. The Board of Directors of the Corporation shall
cause to be kept: (a) a share ledger which shall be in charge of the Secretary; (b) records of
the proceedings of stockholders and directors: and (c) such other records and books of account as
shall be necessary and appropriate to the conduct of the corporate business.
Section 8.02. Audit. The Board of Directors shall cause the records and books of
account of the Corporation to be audited at least once for each fiscal year and at such other times
as it may deem necessary or appropriate.
Section 8.03. Fiscal Year. The fiscal year of the Corporation shall end on the last
Saturday in February of each year.
ARTICLE IX.
Indemnification
Indemnification
Section 9.01. Statutory Indemnification. The Corporation shall indemnify any director
or officer of the Corporation and may indemnify any employee or agent of the Corporation in the
discretion of the Board of Directors for such liabilities in such manner under such circumstances
and to such extent as permitted by Section 145 of the Delaware General Corporation Law or its
successor, as now enacted or hereafter amended.
Section 9.02. Additional Indemnification. In addition to that authorized in Section
9.01 herein, the Corporation shall indemnify as follows:
(a) 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 such person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees) , judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding (even if such
wrongful act arose out of neglect or breach of duty not involving willful misconduct) , so long as
such person did not act out of personal profit or advantage which was undisclosed to the
Corporation and such person acted in a manner he or she reasonably believed to be in or not opposed
to the best interest of the 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 act in good
faith and in a manner which he or she reasonably believed to be or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(b) 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 such person is or was a
director or officer of the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit, including amounts paid in settlement, (even
if such wrongful act arose out of neglect or breach of duty not involving willful misconduct) , so
long as such person did not act out of personal profit or advantage which was undisclosed to the
Corporation and such person acted in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation.
Section 9.03. Procedure for Indemnification.
(a) The Corporation shall be required to make a determination that indemnification under this
Article is proper in the circumstances because the person being indemnified has met the applicable
standards of conduct set forth in this Article. Such determination shall be made (1) by a majority
vote of the directors who are not parties to the action, suit or proceeding, even though less than
a quorum, (2) by a committee of such directors designated by a majority vote of such directors,
even
though less than a quorum, (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders of the Corporation. If a
court orders indemnification of the officer or director, no such outside determination is
necessary.
(b) Expenses incurred by any person who shall have a right of indemnification under this
Article in defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action provided that a determination has
not been made by independent legal counsel (who may be the regular counsel for the Corporation) in
a written opinion that it is reasonably likely that the person has not met the applicable standards
of conduct for indemnification and provided that the Corporation has received an undertaking by or
on behalf of the person to repay such expenses unless it shall ultimately be determined that such
person is entitled to be indemnified by the Corporation pursuant to this Article.
Section 9.04. Vested, Non-Exclusive Contract Right; Survival.
(a) The indemnification provided by this Article is in addition to and independent of and
shall not be deemed exclusive of any other rights to which any person may be entitled under any
agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in such
persons official capacity and as to action in another capacity while holding such office, and
shall continue to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person; provided that any
indemnification realized other than under this Article shall apply as a credit against any
indemnification provided by this Article.
(b) The Corporation may provide indemnification under this Article to any employee or agent of
the Corporation or of any other corporation of which the Corporation owns or controls or at the
time owned or controlled directly or indirectly a majority of the shares of stock entitled to vote
for election of directors or to any director, officer, employee or agent of any other corporation,
partnership, joint venture, trust or other enterprise in which the Corporation has or at the time
had an interest as an owner, creditor or otherwise, if and whenever the Board of Directors of the
Corporation deems it in the best interest of the Corporation to do so.
(c) The Corporation may, to the fullest extent permitted by applicable law from time to time
in effect, indemnify any and all persons whom the Corporation shall have power to indemnify under
said law from and against any and all of the expenses, liabilities or other matters referred to in
or covered by said law, if and whenever the Board of Directors of the Corporation deems it to be in
the best interest of the Corporation to do so.
(d) The provisions of this Article IX shall be deemed to be a contract between the Corporation
and each director and officer who serves in such capacity at any time while this Article IX is in
effect, and any repeal or amendment of this Article IX shall not
adversely affect any right or protection of any person granted pursuant hereto then existing with
respect to any state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon any such state of
facts. Neither the repeal nor amendment of this Article IX, nor the adoption of any provision of
the Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce the
effect of this Article IX in respect of any matter occurring, or any cause of action, suit or claim
that would accrue or arise, prior to such repeal, amendment or adoption of an inconsistent
provision.
Section 9.05. Subsidiary Corporations. For purposes of this Article and
indemnification hereunder, any person who is or was a director or officer of any other corporation
of which the Corporation owns or controls or at the time owned or controlled directly or indirectly
a majority of the shares of stock entitled to vote for election of directors of such other
corporation shall be conclusively presumed to be serving or to have served as such director or
officer at the request of the Corporation.
ARTICLE X.
Miscellaneous
Miscellaneous
Section 10.01. Periods of Time. During any period of time prescribed by these Bylaws,
the date from which the designated period of time begins to run shall not be included, and the last
day of the period so computed shall be included.
Section 10.02. Voting Securities Held by the Corporation. Unless otherwise ordered by
the Board of Directors, the Chief Executive Officer shall have full power and authority on behalf
of the Corporation (a) to attend and to vote at any meeting of security holders of other
corporations in which the Corporation may hold securities; (b) to execute any proxy for such
meeting on behalf of the Corporation; or (c) to execute a written action in lieu of a meeting of
such other corporation on behalf of the Corporation. At such meeting, by such proxy or by such
writing in lieu of meeting, the Chief Executive Officer shall possess and may exercise any and all
rights and powers incident to the ownership of such securities that the Corporation might have
possessed and exercised if it had been present. The Board of Directors may, from time to time,
confer like powers upon any other person or persons.
Section 10.03. Purchase and Sale of Securities. Unless otherwise ordered by the Board
of Directors, the Chief Executive Officer shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of any other corporation
owned by the Corporation and may execute and deliver such documents as may be necessary to
effectuate such purchase, sale, transfer or encumbrance. The Board of Directors may, from time to
time, confer like powers upon any other person or persons.
ARTICLE XI.
Amendments
Amendments
Section 11.01. These Bylaws may be amended, altered or repealed at any meeting of the
directors by a vote of the majority of the whole Board of Directors or at any meeting of the
shareholders at which a quorum, as defined in Article II, Section 2.04 of these Bylaws, is present
by the vote of a majority of the shares voting at the meeting.