BY-LAWS
of
SMITHFIELD FOODS, INC.
[Amended as of July 12, 1996]
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. A meeting of stockholders of the corporation
shall be held annually either at the principal office of the company in the
State of Virginia, or at such other place within or without the State of
Virginia, as may be designated from time to time by the Board of Directors and
stated in the notice of the meeting. The time and place of the meeting shall be
fixed from time to time by the Board of Directors and if no such time and place
be so fixed, the annual meeting shall be held at two o'clock in the afternoon on
the first Wednesday in June of each year for the purpose of electing Directors
and for the transaction of such other business as may be brought before the
meeting.
Written notice of the annual meeting shall be mailed at least ten days
prior to the meeting to each stockholder of record at his address as the same
appears on the record of shareholders of the company.
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Section 2. Special Meetings. Special meetings of the stockholders of the
corporation may be held either at the principal office of the corporation in the
State of Virginia, or at such other place within or without the State of
Virginia, as may be designated from time to time by the Board of Directors and
stated in the notice of the meeting, and may be called by the Board of Directors
of the corporation, by the Executive Committee of such Board, by the President
or by the Chairman of the Board.
Written notice of each special meeting, stating the day, hour and place
thereof, and the general terms of the business to be transacted thereat, shall
be mailed at least ten days prior to the meeting to each stockholder of record
at his address as the same appears in the record of shareholders of the
corporation.
Section 3. Quorum. At any meeting of the stockholders, the holders of a
majority of the issued and outstanding stock of the corporation entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
for the transaction of business. If there be less than a quorum, the holders of
a majority of the stock present or represented may adjourn the meeting from time
to time.
Section 4. Voting. At any meeting of the stockholders every owner of
shares entitled to vote may vote, in person or by proxy, and shall have one vote
for each such share standing in his name on the transfer books of the
corporation as of the record date. At all elections of directors the voting
shall be by ballot, and the Board of Directors or, if the Board shall not
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have acted, the Chairman presiding at any meeting of stockholders, shall have
power to appoint two or more persons to act as election inspectors to receive,
canvass, and report the votes cast for such purpose by the stockholders at such
meeting; however, no candidate for the office of director shall be appointed as
inspector at any meeting for the election of directors.
Section 5. Presiding Officer. The President, or in his absence, the
Executive Vice President or other officer of the corporation shall preside at
all meetings of the stockholders, unless the Board of Directors appoints another
stockholder who accepts the appointment to act as Chairman of the meeting.
Section 6. Secretarial Officer. The Secretary of the corporation shall
act as secretary of all meetings of the stockholders unless the Chairman
appoints another stockholder who accepts the appointment to act as secretary of
the meeting.
ARTICLE II
DIRECTORS
Section 1. Function. The property, business, and affairs of the
corporation shall be managed and controlled by its Board of Directors.
Section 2. Number, Term and Qualification. The Board of Directors
shall consist of no less than three (3) nor more than seventeen (17) members,
the precise number to be determined from time to time by the affirmative vote of
not less than a majority of the directors at a meeting where a quorum is
present. Each
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director shall hold office until his death, resignation, retirement, removal,
disqualification or until his successor is elected and qualified. Directors need
not be residents of the State of Delaware or shareholders of the corporation. A
stockholder entitled to vote in the election of directors may nominate one or
more persons for election as a director at an annual or special meeting of
stockholders only if written notice of such stockholder's intent to make such
nomination has been given, either by personal delivery to the Secretary of the
corporation not later than the close of business on the tenth day following the
date on which notice of such meeting is first mailed to stockholders or by
United States mail, postage prepaid, to the Secretary of the corporation
postmarked not later than the tenth day following the date on which notice of
such meeting is first mailed to stockholders. Each notice required by this
section shall set forth: (1) the name and address of the stockholder who intends
to make the nomination; (2) the name, address and principal occupation of each
proposed nominee; (3) a representation that the stockholder is entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; and (4) the consent of
each proposed nominee to serve as a director of the corporation if so elected.
The Chairman of the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
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Section 3. Vacancies. Whenever a vacancy occurs on the Board of
Directors, by reason of death, resignation, retirement, removal,
disqualification, increase in the number of directors or otherwise, it may be
filled by a majority of the remaining directors, though less than a quorum,
until the next Annual Meeting of the stockholders.
Section 4. Meetings of the Board. The organizational meeting of the
Board of Directors shall be held in each year after the adjournment of the
annual stockholders' meeting and on the same day. If a quorum of directors be
not present on the day appointed for the organizational meeting, the meeting
shall be adjourned to some convenient day. No notice need be given of the
organizational meeting of the Board.
Meetings of the Board of Directors shall be held at such place within or
outside the State of Virginia as may from time to time be fixed by resolution of
the Board or as may be specified in the call of any meeting. Regular meetings of
the Board of Directors shall be held at such times as may from time to time be
fixed by resolution of the Board, and no notice need be given of such regular
meetings. Special meetings of the Board may be held at any time upon the call of
the President or the Chairman of the Board or not less than one-third of the
directors then in office by oral, telegraphic or written notice, duly served on
or sent or mailed to each director not less than three days before such meeting.
Special meetings may be held without notice if all the
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directors are present or if those not present waive notice of the meeting in
writing, either before or after the meeting.
Section 5. Quorum. At meetings of the Board of Directors, the Chairman
of the Board, the President or a designated Vice President shall preside. A
majority of the members of the Board of Directors shall constitute a quorum for
the transaction of business, but less than a quorum may adjourn any meeting from
time to time until a quorum shall be present, whereupon the meeting may be held,
and adjourned, without further notice. The act of a majority of directors
present at a meeting where a quorum is present shall be the act of the Board of
Directors.
Section 6. Action Without a Meeting. Any action of the Board of
Directors may be taken without a meeting if written consent to the action to be
taken signed by all the members of the Board is filed in the Minute Book of the
Corporation prior to the taking of such action.
Section 7. Compensation. In addition to reimbursement of his reasonable
expenses incurred in attending meetings or otherwise in connection with his
attention to the affairs of the corporation, each director as such, and as a
member of the Executive Committee or of any other committee of the Board, shall
be entitled to receive such remuneration as may be fixed from time to time by
the Board of Directors, in the form of either fees for attendance at meetings of
the Board and committees thereof, or of payment at the rate of a fixed sum per
month, or a combination of both methods of payment; but no director who
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receives a salary as an officer of the corporation shall receive any additional
remuneration as a director or member of any committee of the Board.
ARTICLE III
COMMITTEES
Section 1. Executive Committee; Other Committees. The Board of
Directors may, by resolution adopted by a vote of a majority of the directors,
designate three (3) or more of their number, including in each case, the
President, as an Executive Committee. While the Board of Directors is not in
session, the Executive Committee, if there then be such a committee, shall have
and may exercise the authority of the Board of Directors in the management of
the business and affairs of the corporation other than those of corporate policy
and subject to the other restrictions hereinafter set out and further subject to
such limitations as the Board may from time to time impose. In no event shall
the Executive Committee or any other committee, have authority to approve an
amendment to the Certificate of Incorporation, or to approve a plan of merger
consolidation, or to amend these By-Laws, or to elect officers or fix their
compensation. The Executive Committee shall have the power to authorize the seal
of the corporation to be affixed to all papers which may require it.
In addition to an Executive Committee, the Board of Directors may, by
resolution of a majority of the directors present at any meeting at which a
quorum is present, designate
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other committees of limited authority, each such committee to consist of three
(3) or more directors.
Unless the Board of Directors by resolution otherwise provide, the
Executive Committee and each other committee shall choose its own chairman and
secretary. The Executive Committee and each other committee shall record all its
acts and proceedings and report the same from time to time to the Board of
Directors.
Regular meetings of any such committee, of which no notice shall be
necessary, may be held at such time and in such place as shall be fixed by a
majority of the committee. Special meetings of any such committee may be called
at the request of any member of any such committee. Notice of each special
meeting of such a committee shall be given by the person calling the same as
provided by these By-Laws for special meetings of the full Board. Notice of any
such meetings may be waived as provided by these By-Laws in the case of meetings
of the full Board.
A majority of any such committee shall constitute a quorum for the
transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of the committee. Members
of any such committee shall only act as a committee and the individual members
shall have no power as such.
The Board of Directors shall have the power at any time to change the
members of, fill vacancies in, and discharge any such committee, either with or
without cause. The appointment of any
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director to any such committee, if not sooner terminated, shall automatically
terminate upon the expiration of his term as a director or upon the earlier
cessation of his membership on the Board of Directors.
Section 2. Records. All actions by any committee shall be reported to
the Board of Directors at a meeting succeeding such action and recorded as a
part of the minutes of said meeting. All such actions shall be subject to
revision, alteration, and approval by the Board of Directors; provided that no
rights or acts of third parties shall be affected by such revision or
alteration.
ARTICLE IV
OFFICERS
Section 1. Election. The Board of Directors may elect from its own
number a Chairman of the Board and shall elect from its own number a President
of the corporation. In addition, the Board shall elect a Treasurer and a
Secretary, and may elect an Executive Vice President and one or more Vice
Presidents and such other officers or assistant officers as in its opinion are
desirable for the conduct of the business of the corporation.
Section 2. Removal. Any officer of the corporation shall be subject to
removal at any time by affirmative vote of a majority of the whole Board of
Directors. Any agent, or employee, other than officers appointed by the Board
of Directors, shall hold office at the discretion of the officer appointing
them. In its discretion, the Board of Directors may
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leave any office unfilled, excepting the office of President, Treasurer, and
Secretary, which shall be filled in the event of vacancy as soon as practicable.
Section 3. Chairman of the Board. The Chairman of the Board of
Directors, if elected, or failing his election, the President, shall preside at
all meetings of the Board of Directors and shall perform such other duties as
may be prescribed from time to time by the Board of Directors.
Section 4. President. The President shall be the chief executive and
administrative officer of the corporation. He shall preside at all meetings of
the stockholders and, in the absence of the Chairman of the Board, if any, at
meetings of the Board of Directors. He shall exercise such duties as customarily
pertain to the office of President and shall have general and active supervision
over the property, business, and affairs of the corporation and over its several
officers. He shall perform such other duties as may be prescribed from time to
time by the Board of Directors or by the By-Laws. He, or his designee, shall
have full power and authority on behalf of the corporation to attend and to vote
at any meeting of the stockholders of any corporation in which the corporation
may hold stock, and may exercise on behalf of the corporation any and all of the
rights and powers incident to the ownership of such stock at any such meeting,
and shall have power and authority to execute and deliver proxies and consents
on behalf of the corporation in connection with the exercise by the corporation
of the rights and
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powers incident to the ownership of such stock. He may appoint agents and
employees, other than those elected by the Board of Directors. He may sign,
execute and deliver in the name of the corporation powers of attorney,
contracts, bonds, notes, corporate obligations and other documents. He may
perform personally and upon his own initiative any duties assigned to or
normally performed by any other officer pursuant to the By-Laws or act of the
Board of Directors.
Section 5. Executive Vice President. The Executive Vice President,
subject to the direction of the President, shall have such powers and pursuant
thereto may perform the duties of the President in his absence or disability.
The Executive Vice President shall perform such other duties as may be
prescribed from time to time.
Section 6. Vice Presidents. The Vice Presidents, subject to the
direction of the President, shall have such powers and perform such duties as
may be prescribed from time to time. In the absence or disability of the
President and the Executive Vice President, the Vice President designated by the
Board so to do shall perform the duties and exercise the powers of the
President.
Section 7. Treasurer. The Treasurer, subject to the direction of the
President, shall have general responsibility for and custody of the books of
account and all funds and securities of the corporation and have general
supervision of the collection and disbursement of funds of the corporation. If
so required, he
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shall give bond for the faithful performance of his duties in such sum and with
such surety as shall be approved by the Board of Directors or the President. He
shall perform such other duties as may be prescribed from time to time.
Section 8. Secretary. The Secretary, subject to the direction of the
President, shall have general responsibility for and custody of the minutes of
all meetings of the stockholders and of the Board of Directors and of all
committees appointed by the Board. He shall have general responsibility for and
custody of the corporate seal, the transfer books, and other records and
documents of the corporation not pertaining to the performance of duties vested
in other officers. He shall cause notice to be given of meetings of
stockholders, of the Board of Directors, and of all committees appointed by the
Board of Directors. He shall perform such other duties as may be prescribed from
time to time.
Section 9. Vacancies. In case any office shall become vacant, the Board
of Directors shall have power to fill such vacancies. In case of the absence or
disability of any officer, the Board of Directors or the President may delegate
the powers or duties of any officer to another officer or a director for the
time being.
ARTICLE V
CAPITAL STOCK
Section 1. Form. Certificates for stock of the Corporation shall be in
such form as the Board of Directors may from time to time prescribe and shall be
signed by the President
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or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary. If certificates are signed by a Transfer
Agent, acting in behalf of the corporation, and a Registrar, the signatures of
the officers of the corporation may be facsimile. In case any officer who
signed, or whose facsimile signature has been used on any certificate shall
cease to be such officer for any reason before the certificate has been
delivered by the corporation, such certificate may nevertheless be adopted by
the corporation and issued and delivered as though the person who signed it or
whose facsimile signature has been used thereon had not ceased to be such
officer.
Section 2. Transfer Agents and Registrars. The Board of Directors shall
have power to appoint one or more Transfer Agents and Registrars for the
transfer and registration of certificates of stock of any class, and may require
that such stock certificates be countersigned and registered by one or more of
such Transfer Agents and Registrars.
Section 3. Transfers. Shares of stock of the corporation shall be
transferable on the transfer 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.
Section 4. Transfer Books. The Board of Directors may fix in advance a
date not less than ten nor more than sixty days preceding the date of any
meeting of stockholders, or the date
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for the payment of any dividend or the date of allotment of rights of the date
when any change or conversion or exchange of stock shall go into effect, as a
record date for the determination of the shareholders entitled to notice of and
to vote at any such meeting, or entitled to receive payment of any such
dividends, or any such allotment of rights, or to exercise the rights in respect
to any such dividend, or allotment of rights, or exercise such rights, as the
case may be, notwithstanding any transfer of any stock on the transfer books of
the corporation after any such record date.
Section 5. Lost Certificates. In case any certificate for the stock of
the corporation shall be lost, stolen or destroyed, the corporation may require
such proof of the fact and such indemnity to be given to it and to its Transfer
Agent and Registrar, if any, as shall be deemed necessary or advisable by the
Board of Directors.
Section 6. Holder of Record. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder thereof in
fact, and shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise specifically provided
by law.
Section 7. Inspection. The transfer books shall be open for at least
three business hours each business day for inspection by any judgment creditor
of the corporation or any
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person who shall have been for at least six (6) months immediately preceding his
demand a record holder of not less than one percent (1%) of the outstanding
shares of the corporation, or by any officer, director, or any committee or
person holding or authorized in writing by the holders of at least five percent
(5%) of all the outstanding shares of the corporation. Persons so entitled to
inspect the transfer books may make extracts therefrom. This right of inspection
shall not extend to any person who has used or proposes to use the information
so obtained otherwise than to protect his interest in the corporation, or has
within two (2) years sold or offered for sale any list of stockholders of the
corporation or any other corporation, or has aided or abetted any person in
procuring any stock list for any such purpose.
ARTICLE VI
MISCELLANEOUS
Section 1. Fiscal Year. The Board of Directors shall have power to fix
and to change the fiscal year of the corporation. Unless otherwise determined by
the Board, the corporation's fiscal year shall be the 52 or 53 week period which
ends on the Sunday nearest to April 30.
Section 2. Waiver of Notice. Any notice required to be given under the
provisions of these By-Laws or otherwise may be waived before, at or after the
meeting by the stockholder, director, or officer to whom such notice is required
to be given.
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Section 3. Seal. The corporate seal shall have the name of the
corporation and the word "seal" inscribed thereon, and may be engraved, printed,
impressed or drawn in facsimile upon any document where appropriate.
Section 4. Amendments. The Board of Directors shall have the power to
add any provisions or to alter or repeal any provision of these By-Laws by vote
of a majority of all of the directors present and voting at any duly constituted
meeting of the Board, if a statement of the proposed action shall have been
included in the notice or waiver of notice of such meeting of the Board. The
stockholders may take similar actions with respect to these By-Laws by the vote
of a majority of the stockholders present and voting at any duly constituted
meeting, if a statement of the proposed action shall have been included in the
notice or waiver of notice of such meeting of stockholders.
Section 5. Liability. No person shall be liable to the corporation for
loss or damage suffered by it on account of any action taken or omitted to be
taken by him in good faith as an officer of the corporation, or of any other
corporation which he serves as an officer at the request of the corporation, if
such person (a) exercised and used the same degree of care and skill as a
prudent man would have exercised or used under the circumstances in the conduct
of his own affairs, or (b) took or omitted to take such action in reliance upon
advice of counsel for the corporation or upon statements made or information
furnished by officers or employees of the corporation which he
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had reasonable grounds to believe. The liabilities of directors of the
corporation for action taken or omitted to be taken by them in their capacity as
such shall be governed by the relevant provisions of the Certificate of
Incorporation of the corporation, and to the extent consistent therewith, by
these ByLaws. The foregoing shall not be exclusive of other rights and defenses
to which he may be entitled as a matter of law.
Section 6. Indemnification and Advancement of Expenses. The corporation
shall indemnify, and shall make advance payment of litigation expenses to, in
each case to the fullest extent permitted by law, any person made, or threatened
to be made, a party to any pending, threatened or completed action, suit or
proceeding (whether civil, criminal, administrative, arbitrative or
investigative) by reason of the fact that he, his testator, or intestate is or
was a director, officer or employee of the corporation.
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