8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of

The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 11, 2010

DIEDRICH COFFEE, INC.

(Exact name of registrant as specified in its charter)

Delaware	0-21203	33-0086628
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

28 Executive Park, Suite 200

Irvine, California 92614

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (949) 260-1600

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On December 7, 2009, Diedrich Coffee, Inc., a Delaware corporation (the “Company”), Green Mountain Coffee Roasters, Inc., a Delaware corporation (“GMCR”), and Pebbles Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of GMCR (“Acquisition Sub”), entered into the previously announced Agreement and Plan of Merger (the “Merger Agreement”).

On May 11, 2010, the Company was acquired by GMCR pursuant to the terms of the Merger Agreement, through the merger of Acquisition Sub with and into the Company, with the Company surviving as a wholly owned subsidiary of GMCR (the “Merger”). The Merger was consummated pursuant to Section 253 of the General Corporation Law of the State of Delaware (the “DGCL”) without a vote or meeting of the Company’s stockholders. In the Merger, all outstanding Shares (other than any Shares held by the Company, GMCR, Acquisition Sub or any of GMCR’s other controlled subsidiaries, or any Shares as to which appraisal rights had been perfected) were canceled and converted into the right to receive consideration equal to $35.00 per Share, net to the holder in cash, without interest thereon (the “Merger Consideration”). Holders of Shares no longer have any rights with respect to the Shares other than the right either to receive the Merger Consideration or to seek appraisal of the Shares in the manner provided by Section 262 of the DGCL.

As a result of the Merger and the other transactions contemplated by the Merger Agreement, the Company no longer fulfills the quantitative listing requirements of the NASDAQ Capital Market. Accordingly, on May 11, 2010, the Company (a) notified The NASDAQ Stock Market LLC (“NASDAQ”) of the effectiveness of the Merger and (b) requested that the Common Stock be withdrawn from listing on the NASDAQ Capital Market as of the close of business on May 11, 2010, and that NASDAQ file with the Securities and Exchange Commission (the “SEC”) a Form 25 to delist and deregister the Common Stock. The Company also will file with the SEC a Form 15 requesting that the Common Stock be deregistered and that the Company’s reporting obligations under Sections 13 and 15(d) of the Securities Exchange Act of 1934, as amended, be suspended.

The foregoing description of the Merger Agreement and the transactions contemplated by the Merger Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated by reference herein.

Item 3.03. Material Modification to Rights of Security Holders.

The information set forth under Item 5.01 to this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

Item 5.01. Changes in Control of Registrant.

On December 11, 2009, pursuant to the terms of the Merger Agreement, Acquisition Sub commenced the tender offer (the Offer) disclosed in the Tender Offer Statement on Schedule TO originally filed by GMCR and Acquisition Sub with the SEC on December 11, 2009, as amended (the “Schedule TO”), to purchase all of the issued and outstanding Shares, at a purchase price of $35.00 per Share, net to the seller in cash, without interest thereon, upon the terms, and subject to the conditions, of the Offer to Purchase, dated December 11, 2009 (the “Offer to Purchase”), and the related Letter of Transmittal (the “Letter of Transmittal”), copies of which are filed with the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.

On May 11, 2010, Acquisition Sub accepted for payment all Shares that were validly tendered and not properly withdrawn, and payment for such Shares has been made, in accordance with the terms of the Offer. Computershare Trust Company, N.A., the depositary for the Offer, advised GMCR and Acquisition Sub that approximately 5,446,334 Shares were validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 95.06% of all outstanding Shares as of the Offer’s expiration date.

On May 11, 2010, GMCR and Acquisition Sub also completed the Merger, as detailed under Item 3.01 and incorporated by reference into this Item 5.01.

GMCR and Acquisition Sub paid approximately $300 million in cash consideration in the Offer and the Merger. GMCR’s and Acquisition Sub’s source of funds for the Offer and the Merger was GMCR’s available cash balances and existing credit facility, as increased by a contemporaneously completed amendment to the credit facility.

GMCR now directly beneficially owns 100% of the Company’s voting securities, pursuant to the Offer and the Merger. GMCR acquired control of the Company from the Company’s previous public stockholder base, including the Company’s previous directors, named executive officers and beneficial owners of more than 5% of the Common Stock (disclosed in the Company’s Definitive Proxy Statement on Schedule 14A, originally filed with the SEC on January 15, 2010 and amended on February 2, 2010).

GMCR facilitated the change in control affected by the Offer and the Merger by entering into stockholder agreements (each, a “Stockholder Agreement”, and collectively, the “Stockholder Agreements”), dated as of December 7, 2009, with each of Paul C. Heeschen, Timothy J. Ryan, James W. Stryker, Jeanne Ortiz, James L. Harris, James R. Phillips, Gregory D. Palmer, Sean M. McCarthy, Jack Hosier and Dana A. King, solely in their capacities as stockholders of the Company. The Stockholder Agreement with Jeanne Ortiz subsequently was terminated in connection with her discontinued employment with the Company. The Stockholder Agreements provided that each of the executing stockholders:

(a) would tender (and not withdraw) all of the Shares beneficially owned by that stockholder in the Offer, except that Mr. Heeschen’s obligation to tender was limited to 1,832,580 of the Shares beneficially owned by him, which 1,832,580 Shares represented approximately 32% of the outstanding Shares as of the date of the Stockholder Agreements; and

(b) would vote in favor of the Merger, the adoption of the Merger Agreement and the terms of, and the other actions contemplated by, the Merger Agreement, would vote against any action or agreement that would result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement and would vote against any action that was intended, or that could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Offer or the Merger, or any of the other transactions contemplated by the Merger Agreement or the relevant Stockholder Agreement, except that Mr. Heeschen’s obligation to vote as provided above was limited to 1,832,580 of the Shares beneficially owned by him, to the extent not acquired in the Offer.

The Stockholder Agreements also contained customary representations and warranties, as well as agreements by the executing stockholders to restrictions on the transferability of their Shares and the transferability of certain voting rights. The Stockholder Agreement with Mr. Heeschen also contained an agreement by Mr. Heeschen not to exercise, or cause or permit to be exercised, any warrants owned of record or beneficially by him, unless consented to in advance by GMCR. The Stockholder Agreements were automatically terminated upon completion of the Merger.

The foregoing description of the Stockholder Agreements and the transactions contemplated by the Stockholder Agreements is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Stockholder Agreements, copies of which are filed as Exhibits 99.1 and 99.2 hereto and incorporated by reference herein.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Effective May 11, 2010, in accordance with the Merger Agreement and in connection with the Merger’s consummation, each of Paul C. Heeschen, Gregory D. Palmer, J. Russell Phillips, Timothy J. Ryan and James W. Stryker resigned as Directors of the Company. Paul C. Heeschen also resigned as Executive Chairman of the Company.

On May 11, 2010, in accordance with the Merger Agreement and in connection with the Merger’s consummation, Frances G. Rathke and Howard Malovany were appointed as the Directors of the Company pursuant to an action by written consent of the Company’s sole stockholder.

On May 11, 2010, in accordance with the Merger Agreement and in connection with the Merger’s consummation, Sean M. McCarthy, James L. Harris and Dana A. King were removed as named executive officers of the Company.

On May 11, 2010, in accordance with the Merger Agreement and in connection with the Merger’s consummation, R. Scott McCreary was appointed as President of the Company and Tina Bissonette was appointed as Vice President - Finance of the Company.

Mr. McCreary is age 50 and also currently holds, and previously has held, positions with GMCR (the Company’s parent corporation). Mr. McCreary has served as President of GMCR’s Specialty Coffee Business Unit since December 2009. Mr. McCreary previously served as GMCR’s Chief Operating Officer from September 2004 through December 2009. In these positions, Mr. McCreary has been responsible for leadership of the strategic and tactical direction of GMCR’s Specialty Coffee Business Unit to achieve sustainable growth and differentiation in the marketplace and for the performance of all department functions, including Sales, Marketing, Supply Chain Operations, Human Resources, Finance, Information Technology and Research & Development.

Ms. Bissonette is age 44 and also currently holds, and previously has held, positions with GMCR (the Company’s parent corporation). Ms. Bissonette has served as Vice President of Finance for GMCR since December 2007. Ms. Bissonette previously served as Chief Financial Officer for Systems and Software, Inc., a software company that provides customer information systems and services to municipal and investor-owner utilities, from October 2005 to December 2007. Ms. Bissonette also served as Vice President Finance, Assistant Treasurer and Secretary for IDX Systems, a healthcare software technology company, from April 1999 to September 2005. In these positions, Ms. Bissonette’s responsibilities have included, among other things: oversight of company accounting practices and staff, preparation of budgets, financial reporting, contract administration and tax and audit functions.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On May 11, 2010, in accordance with the Merger Agreement and upon consummation of the Merger, (a) the Company’s certificate of incorporation was amended and restated in its entirety to substantially conform to the certificate of incorporation of Acquisition Sub and (b) the Company’s bylaws were amended and restated in their entirety to substantially conform to the by-laws of Acquisition Sub, each as in effect immediately prior to the consummation of the Merger (except that the name of the surviving corporation set forth in the amended and restated certificate of incorporation and the amended and restated by-laws is “Diedrich Coffee, Inc.”). A copy of the Company’s Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 hereto and is incorporated by reference herein.

A copy of the Company’s Amended and Restated By-Laws is filed as Exhibit 3.2 hereto, and is incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

No.	Description
2.1	Agreement and Plan of Merger, dated as of December 7, 2009, by and among Green Mountain Coffee Roasters, Inc., Pebbles Acquisition Sub, Inc. and Diedrich Coffee, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed on December 8, 2009)
3.1.	Amended and Restated Certificate of Incorporation of Diedrich Coffee, Inc.
3.2.	Amended and Restated By-Laws of Diedrich Coffee, Inc.
99.1.	Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and Paul C. Heeschen (incorporated by reference to Exhibit 99.3 of the Current Report on Form 8-K filed on December 8, 2009)
99.2.	Form of Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and those certain directors and executive officers of Diedrich Coffee, Inc. party thereto (incorporated by reference to Exhibit 99.4 of the Current Report on Form 8-K filed on December 8, 2009)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Diedrich Coffee, Inc.
Date: May 11, 2010	By:	/s/ R. Scott McCreary
		Name:	R. Scott McCreary
		Title:	President

EXHIBIT INDEX

No.	Description
2.1	Agreement and Plan of Merger, dated as of December 7, 2009, by and among Green Mountain Coffee Roasters, Inc., Pebbles Acquisition Sub, Inc. and Diedrich Coffee, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed on December 8, 2009)
3.1.	Amended and Restated Certificate of Incorporation of Diedrich Coffee, Inc.
3.2.	Amended and Restated By-Laws of Diedrich Coffee, Inc.
99.1.	Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and Paul C. Heeschen (incorporated by reference to Exhibit 99.3 of the Current Report on Form 8-K filed on December 8, 2009)
99.2.	Form of Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and those certain directors and executive officers of Diedrich Coffee, Inc. party thereto (incorporated by reference to Exhibit 99.4 of the Current Report on Form 8-K filed on December 8, 2009)

EX-3.1

Exhibit 3.1

STATE of DELAWARE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

DIEDRICH COFFEE, INC.

May 11, 2010

1. Name. The name of the Corporation is Diedrich Coffee, Inc.

2. Registered Office. The registered office of the Corporation in the State of Delaware is located at 2711 Centerville Road, Suite 400 in the City of Wilmington 19808, County of New Castle. The name of the Corporation’s registered agent at such address is Corporation Service Company.

3. Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

4. Stock. The total number of shares of stock that the Corporation will have authority to issue is one thousand (1,000) shares of Common Stock, $0.01 par value per share. Each share of Common Stock will be entitled to one vote.

5. Change in Number of Shares Authorized. Except as otherwise provided in the provisions establishing a class of stock, the number of authorized shares of any class or series of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

6. Election of Directors. The election of directors need not be by written ballot unless the Corporation’s by-laws so require.

7. Authority of Directors. In furtherance, and not in limitation, of the power conferred upon the board of directors by law, the board of directors of the Corporation will have the power to make, adopt, alter, amend and repeal, from time to time, by-laws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal by-laws made by the board of directors.

8. Liability of Directors. A director of the Corporation will not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liability is not permitted under the DGCL as in effect at the time such liability is determined. No amendment or repeal of this paragraph 8 will apply to, or have any effect on, the liability or alleged liability of any director of the Corporation for, or with respect to, any acts or omissions of such director occurring prior to such amendment or repeal.

9. Indemnification. The Corporation will, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify, and upon request advance expenses to, any person who was, is or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was or has agreed to be a director or officer of the Corporation, or, while a director or officer, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorney’s fees and expenses), judgments, fines, penalties and amounts paid in settlement incurred (and not otherwise recovered) in connection with the investigation, preparation to defend or defense of such action, suit, proceeding or claim; provided, however, that the foregoing will not require the Corporation to indemnify, or advance expenses to, any person in connection with any action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification will not be exclusive of other indemnification rights arising under any by-law, agreement, vote of directors or stockholders or otherwise, and will inure to the benefit of the heirs and legal representatives of such person. Any person seeking indemnification under this paragraph 9 will be deemed to have met the standard of conduct required for such indemnification unless the contrary is established. Any repeal or modification of the foregoing provisions of this paragraph 9 will not adversely affect any right or protection of a director or officer of the Corporation with respect to any acts or omissions of such director or officer occurring prior to such repeal or modification.

10. Records. The books of the Corporation may, subject to any statutory requirements, be kept outside the State of Delaware as may be designated by the board of directors of the Corporation or in the by-laws of the Corporation.

11. Meeting of Stockholders of Certain Classes. If at any time the Corporation has a class of stock registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended, for so long as such class is so registered, any action by the stockholders of such class must be taken at an annual or special meeting of stockholders, and may not be taken by written consent.

[Remainder of Page Intentionally Left Blank]

EX-3.2

Exhibit 3.2

AMENDED AND RESTATED

BY-LAWS

OF

DIEDRICH COFFEE, INC.

Date of Amendment and Restatement: May 11, 2010

ARTICLE I

Law, Certificate of Incorporation and By-Laws

These By-Laws are subject to the Certificate of Incorporation. In these By-Laws, references to law, to the Certificate of Incorporation and to the By-Laws mean the law, the provisions of the Certificate of Incorporation and the provisions of these By-Laws as from time to time in effect.

ARTICLE II

Definitions

Capitalized terms used and not otherwise defined in these By-Laws have the meanings provided to them below:

“Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Corporation, as amended and in effect from time to time.

“Board” means the board of directors of the Corporation.

“By-Laws” means these Amended and Restated By-Laws of the Corporation, as amended and in effect from time to time.

“Corporation” means Diedrich Coffee, Inc.

“DGCL” means the General Corporation Law of the State of Delaware, as in effect from time to time.

“Director(s)” means one or more directors of the Board.

“Officer(s)” means one or more officers of the Corporation.

“Stockholder(s)” means one or more holders of the Corporation’s then issued and outstanding capital stock.

ARTICLE III

Stockholders

SECTION 1. Annual Meetings. The annual meeting of Stockholders for the election of Directors and the transaction of any other business that may properly come before the meeting will be held at a place designated by the Board at 10:00 a.m. Pacific Time on the first Tuesday in June of each year, or at any other time and date specified by the Board in the relevant notice of meeting. If the specified date of the annual meeting is a Sunday or a legal holiday at the place in which the meeting is to be held, then the meeting will be held at the same hour on the next business day, or at such other time and date as the Board designates.

SECTION 2. Special Meetings. Special meetings of Stockholders for the transaction of such business as may properly come before the meeting may be called at any time by order of the Board or by signed, written demand delivered to the Corporation’s Secretary by the Stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting, and will be held at such time and date, within or without the State of Delaware, as may be specified by such order or written demand.

SECTION 3. Place of Meetings. All meetings of Stockholders will be held at the Corporation’s principal executive offices, or at any other place specified in the relevant notice of meeting.

SECTION 4. Notice of Meetings. Except as otherwise required or permitted by applicable law, a written notice of the time, date and place of, and the means of remote communications, if any, for, each annual meeting of Stockholders, and a written notice of the time, date, place and purpose or purposes of, and the means of remote communications, if any, for, each special meeting of Stockholders, must be delivered not less than 10 nor more than 60 days prior to the meeting to each Stockholder entitled to vote thereat or entitled to notice thereof by applicable law, by the Certificate of Incorporation or by these By-Laws. Notice of any special meeting must state in general terms the purpose or purposes for which the meeting is to be held.

Notice of meetings may be delivered personally, by mail, by any form of electronic transmission to which the Stockholder has consented or by any other manner approved by law, by, or at the direction of, the Corporation’s principal executive officer or the Secretary. Mailed notices will be deemed to be delivered when deposited in the U.S. mail, postage prepaid, directed to the Stockholder at the Stockholder’s address as it appears in the records of the Corporation. Notices given in any other manner will be deemed effective when dispatched to the Stockholder’s address, email address, facsimile number or other number appearing in the records of the Corporation.

Notice of any adjourned session of any meeting of Stockholders need not be given if the time, date and place of, and the means of remote communications, if any, for, the adjourned session was announced at the meeting at which the adjournment was taken; provided, however, that if the adjournment is for more than 30 calendar days, or if after the adjournment a new record date is set for the adjourned session, then notice of the adjourned session must be given in the same manner as described above for delivering notices of annual or special meetings of Stockholders.

It will be the duty of each Stockholder to notify the Corporation of his, her or its post office address.

SECTION 5. Waiver of Notice of Meetings. Except where expressly prohibited by applicable law or by the Certificate of Incorporation, no notice of the place, date, time and purpose or purposes of any Stockholders’ meeting or any adjourned session of a Stockholders’ meeting need be given to a Stockholder if either:

(a) the Stockholder has delivered to the Corporation a written or electronically transmitted waiver of notice, executed at any time either before or after the relevant meeting or adjourned session; or

(b) the Stockholder attends the relevant meeting or adjourned session in person or by proxy without at the beginning of the relevant meeting or adjourned session objecting to the transaction of business at that meeting or adjourned session because it is not lawfully called or convened.

Neither the business to be transacted at, nor the purpose of, any Stockholders’ meeting or adjourned session of any Stockholders’ meeting need be specified in any written or electronically transmitted waiver of notice.

SECTION 6. Telephone Meetings. Stockholders may participate in any Stockholders’ meeting by means of a conference telephone or any similar communications equipment that enables all persons participating in the meeting to hear each other during the meeting. Participation by these means will constitute presence in person at a meeting.

SECTION 7. Stockholder Lists. The Officer who has charge of the stock ledger of the Corporation must prepare and make, at least 10 days before each Stockholders’ meeting, 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 will be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours of the Corporation at the Corporation’s principal executive offices for a period of at least 10 days before the given Stockholders’ meeting. This list also will be produced at the time and place of the given Stockholders’ meeting during the whole time thereof, and may be inspected by any Stockholder present.

The stock ledger will be the only evidence as to who are the Stockholders entitled to examine the stock ledger, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any Stockholders’ meeting.

SECTION 8. Quorum. Except as otherwise provided by law or the Certificate of Incorporation, a quorum for the transaction of business at any Stockholders’ meeting will consist of the holders of record of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all Stockholders’ meetings at which a quorum is present, all matters, except as otherwise provided by law or the Certificate of Incorporation, will be decided by the vote of the holders of a majority of the shares entitled to vote thereat present in person or by proxy. If a quorum is present at an original meeting, then a quorum need not be present at an adjourned session of that meeting. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present.

SECTION 9. Organization. Stockholders’ meetings will be presided over by the Chairman, if any, or if none or in the Chairman’s absence the Vice-Chairman, if any, or if none or in the Vice-Chairman’s absence the Chief Executive Officer, if any, or if none or in the Chief Executive Officer’s absence the President, if any, or if none or in the President’s absence a Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the Stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary, or in the Secretary’s absence an Assistant Secretary, will act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting will appoint any person present to act as secretary of the meeting.

SECTION 10. Voting; Proxies; Required Vote.

(a) At each Stockholders’ meeting, every Stockholder will be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such Stockholder or by such Stockholder’s duly authorized attorney-in-fact (but no such proxy may be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, will have one vote for each share of stock entitled to vote registered in the name of such Stockholder on the books of the Corporation on the applicable record date fixed pursuant to these By-Laws. At all elections of Directors the voting may, but need not be, by ballot. If a quorum is present at any Stockholders’ meeting as regards a matter, then a plurality of votes properly cast for election of any Director will elect that Director, and a majority of the votes properly cast on any matter other than an election of a Director will decide that matter, except when a greater number of affirmative votes is otherwise required by applicable law, by the Certificate of Incorporation or by these By-Laws.

(b) Any action required or permitted to be taken at any Stockholders’ meeting may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of record of the issued and outstanding capital stock of the Corporation having a majority of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent must be given to those Stockholders who have not consented in writing.

SECTION 11. Inspectors. The Board, in advance of any Stockholders’ meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the Directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her duties, must take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his or her ability. The inspectors, if any, will determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum and the validity and effect of proxies, and will receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result and do such acts as are proper to conduct the election or vote with fairness to all Stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, will make a report in writing of any challenge, question or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.

ARTICLE IV

Board

SECTION 1. General Powers. The business, property and affairs of the Corporation will be managed by, or under the direction of, the Board.

SECTION 2. Qualification; Number; Term; Remuneration.

(a) Each Director must be at least 18 years of age. A Director need not be a Stockholder, a citizen of the United States or a resident of the State of Delaware. The number of Directors constituting the entire Board will be one or such larger number as may be fixed from time to time by action of the Stockholders or the Board, one of whom may be selected by the Board to be its Chairman. The use of the phrase “entire Board” in these By-Laws refers to the total number of Directors which the Corporation would have if there were no vacancies.

(b) Directors who are elected at an annual meeting of Stockholders, and Directors who are elected in the interim to fill vacancies and newly created directorships, will hold office until the next annual meeting of Stockholders, until their successors are elected and qualified or until their earlier death, resignation, removal or disqualification.

(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board, and may be paid a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment will 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. Quorum and Manner of Voting. Except as otherwise provided by law, a majority of the entire Board will constitute a quorum. A majority of the Directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice. The vote of the majority of the Directors present at a meeting at which a quorum is present will be the act of the Board.

SECTION 4. Places of Meetings. Meetings of the Board may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board, or as may be specified in the notice of meeting.

SECTION 5. Annual Meeting. Following the annual meeting of Stockholders, the newly elected Board will meet for the purpose of the election of Officers and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice immediately after the annual meeting of Stockholders at the same place in which such Stockholders’ meeting is held.

SECTION 6. Regular Meetings. Regular meetings of the Board will be held at such times and places as the Board from time to time by resolution determines.

SECTION 7. Special Meetings. Special meetings of the Board will be held whenever called by the Chairman of the Board, Chief Executive Officer or President, or by a majority of the Directors then in office.

SECTION 8. Notice of Meetings. A notice of the place, date and time and the purpose or purposes of each meeting of the Board will be given to each Director by mailing the same at least two days prior to the date of the meeting, or by telegraphing or telephoning the same, or by delivering the same personally, not later than one day prior to the date of the meeting.

SECTION 9. Organization. At all meetings of the Board, the Chairman, if any, or if none, or in the Chairman’s absence or inability to act, the Chief Executive Officer, if any, or if none, or in the Chief Executive Officer’s absence or inability to act, the President, or in the President’s absence or inability to act any Vice-President who is a member of the Board, or in such Vice-President’s absence or inability to act a chairman chosen by the Directors, will preside. The Secretary will act as secretary at all meetings of the Board when present, and, in the Secretary’s absence, the presiding officer may appoint any person to act as secretary.

SECTION 10. Resignation. Any Director may resign at any time upon written notice to the Corporation and such resignation will take effect upon receipt thereof by the Chief Executive Officer, President or Secretary, unless otherwise specified in the resignation. Any or all of the Directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.

SECTION 11. Vacancies. Unless otherwise provided in these By-Laws, vacancies on the Board, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of Directors or otherwise, may be filled by the affirmative vote of a majority of the remaining Directors, although less than a quorum, or by a sole remaining Director, or at a special meeting of the Stockholders, by the holders of shares entitled to vote for the election of directors.

SECTION 12. Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all Directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board.

SECTION 13. Participation in Meetings by Conference Telephone. Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, or by any other means permitted by law. Such participation will constitute presence in person at such meeting.

SECTION 14. Interested Directors and Officers. No contract or transaction between the Corporation and one or more of its Directors or Officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of the Corporation’s Directors or Officers are directors or officers or have a financial interest, will be void or voidable solely for this reason, or solely because the Director or Officer is present at or participates in the Board or committee meeting that authorizes the contract or transaction, or solely because the vote of the relevant Director is counted for that purpose, if:

(a) the material facts as to the Director’s or Officer’s relationship or interest, and as to the contract or transaction, are disclosed or known to the Board or committee, and the Board or committee in good faith authorizes the contract or transaction by affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or

(b) the material facts as to the Director’s or Officer’s relationship or interest, and as to the contract or transaction, are disclosed or known to the Stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by requisite vote of the Stockholders; or

(c) the contract or transaction is fair to the Corporation as of the time that it is authorized, approved or ratified by the Board, a committee or the Stockholders.

Interested Directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee that authorizes a contract or transaction with an interested Director or Officer.

ARTICLE V

Committees

SECTION 1. Appointment. From time to time the Board by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which will have such powers as are determined and specified by the Board in the resolution of appointment.

SECTION 2. Procedures, Quorum and Manner of Acting. Each committee will fix its own rules of procedure, and will meet where and as provided by such rules or by resolution of the Board. Except as otherwise provided by law, the presence of a majority of the then appointed members of a committee will constitute a quorum for the transaction of business by that committee, and, in every case in which a quorum is present, the affirmative vote of a majority of the members of the committee present will be the act of the committee. Each committee will keep minutes of its proceedings, and actions taken by a committee will be reported to the Board.

SECTION 3. Action by Written Consent. Any action required or permitted to be taken at any meeting of any committee of the Board may be taken without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.

SECTION 4. Term; Termination. In the event any person ceases to be a Director, such person will simultaneously therewith cease to be a member of any committee appointed by the Board.

ARTICLE VI

Officers

SECTION 1. Election and Qualifications. The Board will elect the Officers, which will include a President and a Secretary, and may include, by election or appointment, a Chief Executive Officer, one or more Vice-Presidents (any one or more of whom may be given an additional designation of rank or function), a Treasurer and such Assistant Secretaries, such Assistant Treasurers and such other Officers as the Board may from time to time deem proper. Each Officer will have such powers and duties as may be prescribed by these By-Laws and as may be assigned by the Board, the President or the Chief Executive Officer.

SECTION 2. Term of Office and Remuneration. The term of office of all Officers will be one year and until their respective successors have been elected and qualified, but any Officer may be removed from office, either with or without cause, at any time by the Board. Any vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board. The remuneration of all Officers of the Corporation may be fixed by the Board or in such other manner as the Board provides.

SECTION 3. Resignation; Removal. Any Officer may resign at any time upon written notice to the Corporation and such resignation will take effect upon receipt thereof by the Chief Executive Officer, President or Secretary, unless otherwise specified in the resignation. Any Officer will be subject to removal, with or without cause, at any time by vote of a majority of the entire Board.

SECTION 4. Chairman of the Board. The Chairman of the Board, if any, will preside at all meetings of the Board and will have such other powers and duties as may from time to time be assigned by the Board.

SECTION 5. Chief Executive Officer. The Board may designate a Chief Executive Officer. The Chief Executive Officer will have such duties as customarily pertain to that office, including the implementation of the policies of the Corporation as determined by the Board, and will have such other authority as from time to time may be assigned by the Board.

SECTION 6. President. The President will have such duties as customarily pertain to that office, including the general management and supervision of the property, business and affairs of the Corporation and will have such other authority as from time to time may be assigned by the Board.

SECTION 7. Vice-President. A Vice-President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to the regular course of the duties of said office, and will have such other authority as from time to time may be assigned by the Board, the Chief Executive Officer or the President.

SECTION 8. Treasurer. The Treasurer will in general have all duties incident to the position of Treasurer and such other duties as may be assigned by the Board, the Chief Executive Officer or the President.

SECTION 9. Secretary. The Secretary will in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board, the Chief Executive Officer or the President.

SECTION 10. Assistant Officers. Any Assistant Officer will have such powers and duties of the Officer that such Assistant Officer assists as such Officer or the Board from time to time prescribes.

ARTICLE VII

Books and Records

SECTION 1. Location. The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board or the respective Officers in charge thereof may from time to time determine. The record books containing the names and addresses of all Stockholders, the number and class of shares of stock held by each and the dates when they respectively became the owners of record thereof will be kept by the Secretary as prescribed in the By-Laws and by such Officer or agent as is designated by the Board.

SECTION 2. 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 Stockholders’ meeting or any adjournment thereof, the Board may fix a record date, which record date may not be less than 10 nor more than 60 days before the date of such meeting. If no record date is fixed by the Board, the record date for determining Stockholders entitled to notice of or to vote at a Stockholders’ meeting will be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of Stockholders of record entitled to notice of or to vote at a Stockholders’ meeting will apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

(b) In order that the Corporation may determine the Stockholders entitled to consent to corporate action in writing without a meeting, the Board 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, 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. If no such record date has been fixed by the Board, the record date for determining Stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by the DGCL, 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 Delaware by hand or certified or registered mail, return receipt requested, to its principal place of business or to an Officer or an agent of the Corporation having custody of the book in which proceedings of Stockholders’ meeting are recorded. If no record date has been fixed by the Board and prior action by the Board is required by the DGCL, 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 day on which the Board adopts the resolution taking such prior action.

(c) In order that the Corporation may determine the Stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the Stockholders 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 may fix a record date, which record date may not be more than 60 days prior to such action. If no record date is fixed, the record date for determining Stockholders for any such purpose will be at the close of business on the day on which the Board adopts the resolution relating thereto.

ARTICLE VIII

Certificates Representing Stock

SECTION 1. Certificates; Signatures. The shares of capital stock of the Corporation will be represented by certificates; provided, however, that the Board may provide by one or more resolutions that some or all of any or all classes or series of the Corporation’s stock will be uncertificated shares. Any such resolutions will not apply to shares represented by a certificate until that certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, each holder of stock represented by certificates, and, upon request, each holder of uncertificated shares, will be entitled to have a certificate, signed, by or in the name of the Corporation, by the Chairman or Vice-Chairman of the Board, or the President or a Vice-President of the Corporation, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. If any Officer, or any transfer agent or registrar of the Corporation, who has signed or whose facsimile signature has been placed upon a certificate has ceased to be an Officer, or a transfer agent or registrar of the Corporation, before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if the signatory were still an Officer, or a transfer agent or registrar of the Corporation, at the issuance date. The name of the holder of record of the shares represented by a certificate, along with the number of such shares and the date of issue, will be entered on the books of the Corporation.

SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, the shares of capital stock of the Corporation will be transferable on the books of the Corporation only by the holder of record thereof in person, or by duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.

SECTION 3. Fractional Shares. The Corporation may, but will not be required to, issue fractions of shares when necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of shares as of the time when those entitled to receive such fractions are determined, or the Corporation may issue scrip in registered or bearer form over the manual or facsimile signature of an Officer or of an agent of the Corporation, exchangeable as therein provided for full shares, but such scrip will not entitle the holder to any rights of a Stockholder except as therein provided.

The Board will have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation.

SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate in place of any certificate theretofore issued by the Corporation that is alleged to have been lost, stolen or destroyed, and the Board may require the owner of any lost, stolen or destroyed certificate, or his, her or its legal representative, to provide the Corporation with a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of any certificate, or the issuance of any new certificate.

ARTICLE IX

Dividends

Subject to the provisions of law and the Certificate of Incorporation, the Board may declare dividends upon the Corporation’s capital stock at any regular or special Board meeting out of any funds legally available for that purpose, as and when the Board deems expedient in its sole discretion.

ARTICLE X

Ratification

Any transaction, questioned in any lawsuit on the ground of lack of authority, defective or irregular execution, adverse interest of Director, Officer or Stockholder, non-disclosure, miscomputation or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board or by the Stockholders, and, if so ratified, will have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification will be binding upon the Corporation and its Stockholders, and will constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.

ARTICLE XI

Fiscal Year

The fiscal year of the Corporation will be fixed, and will be subject to change, by the Board. Unless otherwise fixed by the Board, the fiscal year of the Corporation will end on the Wednesday closest to June 30 of each year and begin on the following Thursday of the same year.

ARTICLE XII

Corporate Seal

Subject to alteration by the Board, the seal of the Corporation will consist of a flat-faced circular die with the word “Delaware” and the name of the Corporation cut or engraved thereon, together with such other words, dates or images as may be approved from time to time by the Board.

ARTICLE XIII

Waiver of Notice

Whenever notice is required to be given by law, by the Certificate of Incorporation or by these By-Laws, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, will be deemed equivalent to notice.

ARTICLE XIV

Bank Accounts, Drafts, Contracts, Etc.

SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts as may be authorized by the Board, either the primary financial officer or any person designated by the primary financial officer, whether or not an employee of the Corporation, may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as he or she may deem necessary or appropriate, payments from such bank accounts to be made upon and according to the check of the Corporation in accordance with the written instructions of said primary financial officer, or other person so designated by the primary financial officer.

SECTION 2. Contracts. The Board may authorize any person or persons, in the name and on behalf of, the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or instruments, and such authority may be general or confined to specific instances.

SECTION 3. Proxies; Powers of Attorney; Other Instruments. The Chairman, the Chief Executive Officer, the President and any other person designated by any of them will have the power and authority to execute and deliver proxies, powers of attorney and other instruments on behalf of the Corporation in connection with the rights and powers incident to the ownership of stock by the Corporation. The Chairman, the Chief Executive Officer, the President and any other person authorized by proxy or power of attorney executed and delivered by any of them on behalf of the Corporation may attend and vote at any meeting of stockholders of any company in which the Corporation may hold stock, and may exercise, in the name and on behalf of the Corporation, any and all of the rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such person. The Board, from time to time, may confer like powers upon any other person.

SECTION 4. Financial Reports. The Board may appoint the primary financial officer or other fiscal officer and/or the Secretary or any other Officer to cause to be prepared and furnished to Stockholders entitled thereto any special financial notice and/or financial statement, as the case may be, which may be required by any provision of law.

ARTICLE XV

Amendments

These By-Laws may be amended as provided in the Certificate of Incorporation, but no amendment will have the effect of diminishing the rights of any person who is or was a Director or Officer as to any acts or omissions taken or omitted prior to the amendment’s date of execution.