EXHIBIT 3.2
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BYLAWS
OF
SMITHFIELD FOODS, INC.
As Amended and Restated on August 27, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
SHAREHOLDERS
SECTION 1.1 ANNUAL MEETINGS...........................................................................1
SECTION 1.2 SPECIAL MEETINGS..........................................................................2
SECTION 1.3 NOTICE OF MEETINGS........................................................................2
SECTION 1.4 RECORD DATE...............................................................................3
SECTION 1.5 ORGANIZATION..............................................................................4
SECTION 1.6 ADJOURNMENTS..............................................................................4
SECTION 1.7 WAIVER OF NOTICE; ATTENDANCE AT MEETING...................................................4
SECTION 1.8 QUORUM AND VOTING REQUIREMENTS............................................................4
SECTION 1.9 PROXIES...................................................................................5
SECTION 1.10 INSPECTORS OF ELECTIONS...................................................................7
SECTION 1.11 LIST OF SHAREHOLDERS ENTITLED TO VOTE.....................................................8
SECTION 1.12 CONDUCT OF MEETINGS.......................................................................8
ARTICLE II
DIRECTORS
SECTION 2.1 GENERAL POWERS............................................................................9
SECTION 2.2 NUMBER AND TERM...........................................................................9
SECTION 2.3 NOMINATION; ELECTION......................................................................9
SECTION 2.4 RESIGNATION; REMOVAL.....................................................................11
SECTION 2.5 VACANCIES................................................................................11
SECTION 2.6 MEETINGS OF THE BOARD....................................................................12
SECTION 2.7 NOTICE OF MEETINGS.......................................................................12
SECTION 2.8 WAIVER OF NOTICE; ATTENDANCE AT MEETING..................................................13
SECTION 2.9 QUORUM; VOTING...........................................................................13
SECTION 2.10 TELEPHONE PARTICIPATION..................................................................13
SECTION 2.11 ACTION WITHOUT MEETING...................................................................13
SECTION 2.12 ORGANIZATION.............................................................................14
SECTION 2.13 REGULATIONS; MANNER OF ACTING............................................................14
SECTION 2.14 COMPENSATION.............................................................................14
SECTION 2.15 DIRECTOR EMERITUS........................................................................14
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ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 CONSTITUTION OF COMMITTEES...............................................................15
SECTION 3.2 AUTHORITY OF COMMITTEE...................................................................15
SECTION 3.3 EXECUTIVE COMMITTEE......................................................................15
SECTION 3.4 AUDIT COMMITTEE..........................................................................16
SECTION 3.5 COMPENSATION COMMITTEE...................................................................16
SECTION 3.6 PROCEEDINGS..............................................................................17
ARTICLE IV
OFFICERS
SECTION 4.1 OFFICERS GENERALLY.......................................................................17
SECTION 4.2 ELECTION.................................................................................17
SECTION 4.3 REMOVAL OF OFFICERS......................................................................18
SECTION 4.4 AUTHORITY AND DUTIES OF OFFICERS.........................................................18
SECTION 4.5 CHAIRMAN OF THE BOARD....................................................................18
SECTION 4.6 CHIEF EXECUTIVE OFFICER..................................................................18
SECTION 4.7 CHIEF FINANCIAL OFFICER..................................................................19
SECTION 4.8 SECRETARY................................................................................19
SECTION 4.9 VOTING SECURITIES OF OTHER CORPORATIONS..................................................19
SECTION 4.10 BONDS....................................................................................19
ARTICLE V
CAPITAL STOCK
SECTION 5.1 FORM.....................................................................................20
SECTION 5.2 TRANSFER AGENTS AND REGISTRARS...........................................................20
SECTION 5.3 TRANSFERS................................................................................20
SECTION 5.4 RESTRICTIONS ON TRANSFER.................................................................20
SECTION 5.5 LOST CERTIFICATES........................................................................21
SECTION 5.6 HOLDER OF RECORD.........................................................................21
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 FISCAL YEAR..............................................................................21
SECTION 6.2 SEAL.....................................................................................21
SECTION 6.3 EXECUTION OF INSTRUMENTS.................................................................21
SECTION 6.4 CONSTRUCTION.............................................................................22
SECTION 6.5 AMENDMENTS...............................................................................22
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ARTICLE I
SHAREHOLDERS
SECTION 1.1 ANNUAL MEETINGS. (a) The Corporation shall hold an annual
meeting of the shareholders for the election of directors and for the
transaction of such other business as properly may come before the meeting at
such place, either within or without the Commonwealth of Virginia, and at such
date and time as may be designated from time to time by resolution of the Board
of Directors and set forth in the notice or waiver of notice of the meeting.
(b) At an annual meeting of the shareholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (ii) otherwise properly brought
before the meeting by or at the direction of the Board of Directors, or (iii)
otherwise properly brought before the meeting by a shareholder. For business to
be properly brought before an annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation (i) on or
after June 1st and before July 1st of the year in which the annual meeting will
be held, if clause (ii) of this sentence is not applicable, or (ii) not less
than 60 days before the date of the annual meeting if the meeting date is
earlier than August 1st or later than August 31st. In addition, for business to
be brought properly before the meeting by a shareholder, such shareholder's
notice to the Secretary must set forth as to each matter the shareholder
proposes to bring before such meeting (i) a brief description of the business
desired to be brought before the meeting, including the complete text of any
resolutions to be presented and the reasons for wanting to conduct such
business, (ii) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business, (iii) the class and number of shares
of capital stock of the Corporation which are beneficially owned by the
shareholder, and (iv) any material interest of the shareholder in such business.
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(c) No business shall be conducted at an annual meeting of the
shareholders except in accordance with the procedures set forth in Section
1.1(b). The presiding officer of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business has not been properly brought
before the meeting in accordance with the provisions of Section 1.1(b), in which
event such business not properly brought before the meeting shall not be
transacted.
(d) Notwithstanding the foregoing provisions of this Section
1.1, a shareholder seeking to have a proposal included in the Corporation's
proxy statement for a meeting of the shareholders shall comply with the
requirements of Regulation 14A under the Securities Exchange Act of 1934, as
amended from time to time, or with any successor regulation.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of shareholders for any
purpose or purposes may be called at any time (i) by the Chairman of the Board,
the Chief Executive Officer or the President, if any, pursuant to a notice
delivered to the Secretary or (ii) by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors, and no
business shall be conducted at such meeting other than the business set forth in
such notice or resolution. Such special meetings shall be held at such places,
either within or without the Commonwealth of Virginia, and at such date and time
as shall be specified in such notice or resolution.
SECTION 1.3 NOTICE OF MEETINGS. (a) The Corporation shall notify
shareholders of the date, time, and place of each annual and special
shareholders' meeting. Such notice shall be given no less than 10 nor more than
60 days before the meeting date except that notice of a shareholders' meeting to
act on an amendment to the articles of incorporation, a plan of merger or share
exchange, a proposed sale, lease, exchange or other disposition of all or
substantially all of the property of the Corporation otherwise than in the usual
and regular course of business, or the dissolution of the Corporation shall be
given not less than 25 nor more than 60 days before the meeting date. Unless the
Virginia Stock Corporation Act or the Articles of Incorporation require
otherwise, the Corporation is required to give notice only to shareholders
entitled to vote at the meeting.
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(b) Unless the Virginia Stock Corporation Act or the Articles
of Incorporation require otherwise, notice of an annual meeting need not state
the purpose or purposes for which the meeting is called. Notice of a special
meeting shall state the purpose or purposes for which the meeting is called.
(c) If an annual or special meeting is adjourned to a
different date, time, or place, notice need not be given if the new date, time,
or place is announced at the meeting before adjournment. If a new record date
for the adjourned meeting is or shall be given under Section 1.4 hereof,
however, notice of the adjourned meeting shall be given under this Section to
persons who are shareholders as of the new record date.
(d) Notwithstanding the foregoing, no notice of a meeting of
the shareholders need be given to a shareholder if (i) an annual report and
proxy statements for two consecutive annual meetings of shareholders or (ii)
all, and at least two, checks in payment of dividends or interest on securities
during a 12-month period, have been sent by first-class United States mail, with
postage thereon prepaid, addressed to the shareholder at his address as it
appears on the share transfer books of the Corporation, and returned
undeliverable. The obligation of the Corporation to give notice of meetings of
the shareholders to any such shareholder shall be reinstated once the
Corporation has received a new address for such shareholder for entry on its
share transfer books.
(e) Notice of a meeting of the shareholders may be
communicated in person, by telephone, telegraph, teletype, or other form of wire
or wireless communication, or by mail (including electronic mail) or private
carrier. Written notice to a shareholder is effective when mailed, if mailed
postpaid and correctly addressed to the shareholder's address shown on the
Corporation's current record of shareholders.
SECTION 1.4 RECORD DATE. The Board of Directors shall fix, in advance,
a record date in order to make a determination of the shareholders for any
purpose. The record date may not be more than 70 days before the meeting or
action requiring a determination of shareholders. A determination of
shareholders entitled to notice of or to vote at a shareholders' meeting is
effective for any adjournment of the meeting unless the Board of Directors fixes
a new record date, which it shall do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
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SECTION 1.5 ORGANIZATION. At every meeting of shareholders, the
presiding officer shall be the first listed among the following officers who is
present and able to preside at such meeting: the Chairman of the Board, the
Chief Executive Officer, the President, if any, the Chief Operating Officer, if
any, any Executive Vice President, the Chief Financial Officer and the
Secretary. In the absence of all of the foregoing persons, the meeting shall be
presided over by a chairman designated by the Board of Directors, or in the
absence of such designation, by a chairman chosen at the meeting. The Secretary,
or in his absence, an Assistant Secretary, if any, or in his absence, an
appointee of the presiding officer shall act as secretary of the meeting.
SECTION 1.6 ADJOURNMENTS. Subject to the provisions of Section 1.3
hereof, any meeting of shareholders, annual or special, may adjourn from time to
time to reconvene at a different date, time or place. At the adjourned meeting
the Corporation may transact any business which might have been transacted at
the original meeting.
SECTION 1.7 WAIVER OF NOTICE; ATTENDANCE AT MEETING. A shareholder may
waive any notice required by the Virginia Stock Corporation Act, the Articles of
Incorporation, or these Bylaws before or after the date and time of the meeting
that is the subject of such notice. The waiver shall be in writing, be signed by
the shareholder entitled to the notice and be delivered to the Secretary for
inclusion in the minutes or filing with the corporate records. A shareholder's
attendance at a meeting (i) waives objection to lack of notice or defective
notice of the meeting unless the shareholder, at the beginning of the meeting,
objects to holding the meeting or transacting business at the meeting and (ii)
waives objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice unless the
shareholder objects to considering the matter when it is presented.
SECTION 1.8 QUORUM AND VOTING REQUIREMENTS. (a) Each outstanding share
of common stock shall be entitled to one vote on each matter submitted to a vote
at a meeting of the shareholders. Shares of other classes and series shall be
entitled to such vote as may be provided in the Articles of Incorporation.
(b) Shares entitled to vote as a separate voting group may
take action on any matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless otherwise required by law, a majority of the
votes entitled to be cast on a matter by a voting group constitutes a quorum of
that voting group for action on that
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matter. Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or shall be set for that
adjourned meeting. If a quorum exists, action on a matter, other than the
election of directors, by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless a greater number of affirmative votes is required by law. Directors shall
be elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present, unless a different vote
is required by the Articles of Incorporation. Less than a quorum may adjourn a
meeting.
SECTION 1.9 PROXIES.
(a) A shareholder may vote his shares in person or by proxy.
(b) Without limiting the manner in which a shareholder may
authorize another person or persons to act for him as proxy pursuant to
subsection (a) of this Section, the following shall constitute a valid means by
which a shareholder may grant such authority:
(1) A shareholder may execute a writing authorizing
another person or persons to act for him as proxy. Execution may be
accomplished by the shareholder or his authorized officer, director,
employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature.
(2) A shareholder may authorize another person or
persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic
transmission to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like
agent duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined
that the telegram, cablegram, or other electronic transmission was
authorized by the shareholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors
or, if there are no inspectors, such other
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persons making that determination shall specify the information upon
which they relied.
(3) Any copy, facsimile, telecommunication or other
reliable reproduction of the writing or transmission created pursuant
to this paragraph (b) of this Section may be submitted or used in lieu
of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used, provided that
such copy, facsimile, telecommunication or other reproduction shall be
a complete reproduction of the entire original writing or transmission.
(c) An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for 11 months unless a longer period is expressly provided
in the appointment form.
(d) An appointment of a proxy is revocable by the shareholder
unless the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest. An appointment made irrevocable under
this paragraph (d) is revoked when the interest with which it is coupled is
extinguished. A transferee for value of shares subject to an irrevocable
appointment may revoke the appointment if he did not know of its existence when
he acquired the shares and the existence of the irrevocable appointment was not
noted conspicuously on the certificate representing the shares or on the
information statement for shares without certificates.
(e) The death or incapacity of the shareholder appointing a
proxy shall not affect the right of the Corporation to accept the proxy's
authority unless notice of the death or incapacity is received by the Secretary
or other officer or agent authorized to tabulate votes before the proxy
exercises his authority under the appointment.
(f) Subject to any legal limitations on the right of the
Corporation to accept the vote or other action of a proxy and to any express
limitation on the proxy's authority appearing on the face of the appointment
form, the Corporation is entitled to accept the proxy's vote or other action as
that of the shareholder making the appointment. Any fiduciary who is entitled to
vote any shares may vote such shares by proxy.
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SECTION 1.10 INSPECTORS OF ELECTIONS. (a) The Corporation shall, in
advance of any meeting of shareholders, appoint one or more inspectors to act at
the meeting and to make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
shareholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
(b) The inspectors shall: (i) ascertain the number of shares
outstanding and the voting power of each; (ii) determine the shares represented
at the meeting and the validity of proxies and ballots; (iii) count all votes
and ballots; (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) The date and time of the opening and the closing of the
polls for each matter upon which the shareholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the circuit court of the city or county where the
Corporation's principal office is located or, if none in the Commonwealth of
Virginia, where its registered office is located, upon application by a
shareholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with paragraph (b)(2) of Section 1.9 hereof, ballots and the regular books and
records of the Corporation, except that the inspectors may consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the shareholder holds of record. If the
inspectors consider other reliable information for the limited purpose
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permitted herein, the inspectors at the time they make their certification
pursuant to paragraph (b)(v) of this Section 1.10 shall specify the precise
information considered by them including the person or persons from whom they
obtained the information, when the information was obtained, the means by which
the information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
SECTION 1.11 LIST OF SHAREHOLDERS ENTITLED TO VOTE. (a) The officer or
agent having charge of the share transfer books of the Corporation shall make,
at least 10 days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting or any adjournment thereof, with
the address of and the number of shares held by each. The list shall be arranged
by voting group and within each voting group by class or series of shares. For a
period of 10 days prior to the meeting, such list shall be kept on file at the
registered office of the Corporation or at its principal office or at the office
of its transfer agent or registrar and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting for
the purpose thereof. The original share transfer books shall be prima facie
evidence as to which shareholders are entitled to examine such list or transfer
books or to vote at any meeting of the shareholders. The right of a shareholder
to inspect such list prior to the meeting shall be subject to the conditions and
limitations set forth by law.
(b) If the requirements of this Section have not been
substantially complied with, the meeting shall, on the demand of any shareholder
in person or by proxy, be adjourned until such requirements are met. Refusal or
failure to prepare or make available the shareholders' list does not affect the
validity of action taken at the meeting prior to the making of any such demand,
but any action taken by the shareholders after the making of any such demand
shall be invalid and of no effect.
SECTION 1.12 CONDUCT OF MEETINGS. The Board of Directors of the
Corporation may, to the extent not prohibited by law, adopt by resolution such
rules and regulations for the conduct of the meeting of shareholders as it shall
deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the presiding officer of any
meeting of shareholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such officer, are appropriate for the proper conduct of the
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meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the presiding officer, may to the extent not
prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
shareholders of record of the Corporation, their duly authorized and constituted
proxies and any such other persons as the presiding officer shall determine;
(iv) restrictions on the entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless, and to the extent, determined by the Board of
Directors or the presiding officer of the meeting, meetings of shareholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
ARTICLE II
DIRECTORS
SECTION 2.1 GENERAL POWERS. The Corporation shall have a Board of
Directors. All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation managed under the direction of,
the Board of Directors, subject to any limitation set forth in the Articles of
Incorporation.
SECTION 2.2 NUMBER AND TERM. The Board of Directors shall consist of
not less than three nor more than 16 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. Except as provided in
Section 2.5 hereof, directors shall be elected at each annual meeting of the
shareholders and shall serve for a term expiring at the next annual meeting of
the shareholders following their election. A decrease in the number of directors
shall not shorten an incumbent director's term. Despite the expiration of a
director's term, he shall continue to serve until his successor is elected and
qualified or until there is a decrease in the number of directors.
SECTION 2.3 NOMINATION; ELECTION. (a) No person shall be eligible for
election as a director unless nominated (i) by the Board of Directors upon
recommendation of any nominating committee or otherwise, or (ii) by a
shareholder entitled to vote on the election of directors pursuant to the
procedures of this Section 2.3(a). Nominations, other than those made by the
Board of Directors, may be made
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only by a shareholder who is a shareholder of record of a class of shares
entitled to vote for the election of directors at the time of the giving of the
notice hereinafter described in this Section 2.3 and only if written notice of
the shareholder's intent to nominate one or more persons for election as
directors has been given, either by personal delivery or by United States
certified mail, postage prepaid, addressed to the Secretary of the Corporation
at the principal office of the Corporation and received (i) on or after June 1st
and before July 1st of the year in which the meeting is held, if the meeting is
an annual meeting and clause (ii) is not applicable, or (ii) not less than 60
days before the date of an annual meeting, if the meeting date is earlier than
August 1st or later than August 31st, or (iii) not later than the close of
business on the tenth day following the day on which notice of a special meeting
of the shareholders called for the purpose of electing directors is first mailed
to the shareholders.
(b) Each such shareholder's notice shall contain the following
information:
(i) as to the shareholder giving the notice (A) the
name and address of such shareholder as they appear on the
Corporation's stock transfer books, (B) the class and number of shares
of stock of the Corporation beneficially owned by such shareholder, (C)
a representation that such shareholder is a shareholder of record and
intends to appear in person or by proxy at such meeting to nominate the
person or persons specified in the notice, and (D) a description of all
arrangements or understandings, if any, between such shareholder and
each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made; and
(ii) as to each person whom the shareholder wishes to
nominate for election as a director: (A) the name, age, business
address and residential address of each such nominee, (B) the principal
occupation or employment of each such nominee, (C) the class and number
of shares of the Corporation which are beneficially owned, directly or
indirectly, by each such nominee or over which such nominee has voting
control, and (D) such other information concerning each such nominee as
would be required under the rules of the Securities and Exchange
Commission to be included in a proxy statement soliciting proxies for
the election of directors;
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and such notice shall include a signed consent by each such nominee to serve as
a director of the Corporation if elected and a written statement by such nominee
to the effect that the information about him in the notice is correct.
(c) Except as provided in Section 2.5 hereof or in the
Articles of Incorporation, the directors shall be elected by the holders of the
common shares at each annual meeting of the shareholders and those persons who
receive the greatest number of votes shall be deemed elected even though they do
not receive a majority of the votes cast. No individual shall be named or
elected as a director without his prior consent.
SECTION 2.4 RESIGNATION; REMOVAL. A director may resign at any time
upon delivering a written notice of resignation, signed by such director, to the
Board of Directors, the Chairman of the Board, the President, if any, or the
Secretary. Unless a later date is specified therein, such resignation shall take
effect upon delivery. The shareholders may remove one or more directors with or
without cause. If a director is elected by a voting group, only the shareholders
of that voting group may vote to remove him. Unless the Articles of
Incorporation require a greater vote, a director may be removed if the number of
votes cast to remove him constitutes a majority of the votes entitled to be cast
at an election of directors of the voting group or voting groups by which such
director was elected. A director may be removed by the shareholders only at a
meeting called for the purpose of removing him and the meeting notice must state
that the purpose, or one of the purposes, of the meeting is removal of the
director.
SECTION 2.5 VACANCIES. A vacancy on the Board of Directors, including a
vacancy resulting from the removal of a director or an increase in the number of
directors, may be filled by (i) the shareholders, (ii) the Board of Directors or
(iii) the affirmative vote of a majority of the remaining directors though less
than a quorum of the Board of Directors and may, in the case of a resignation
that will become effective at a specified later date, be filled before the
vacancy occurs but the new director may not take office until the vacancy
occurs.
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SECTION 2.6 MEETINGS OF THE BOARD. (a) The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of
such other business as may properly come before the meeting shall be held as
soon as possible following the annual meeting of shareholders. The Board of
Directors may also adopt a schedule of additional meetings which, together with
the annual meeting referred to in the preceding sentence, shall be considered
the regular meetings of the Board of Directors. Regular meetings may be held at
such places within or without the Commonwealth of Virginia and at such times as
the Chairman of the Board or the Board of Directors shall designate from time to
time. If no place is designated, regular meetings shall be held at the principal
executive offices of the Corporation.
(b) Special meetings of the Board of Directors may be called
by the Chairman of the Board, the Chief Executive Officer, the President, if
any, or not less than one-third of the directors then in office and shall be
held at such times and at such places, within or without the Commonwealth of
Virginia, as the person or persons calling the meetings shall designate. If no
such place is designated in the notice of the meeting, it shall be held at the
principal executive offices of the Corporation.
SECTION 2.7 NOTICE OF MEETINGS. (a) No notice need be given of
regular meetings of the Board of Directors.
(b) Notices of special meetings of the Board of Directors
shall be given to each director in person or delivered to his residence or
business address (or such other place as he may have directed in writing) not
less than 24 hours before the meeting by mail, messenger, telecopier, telegraph
or other means of written communication or by telephoning such notice to him.
Any such notice shall set forth the time and place of the meeting and state the
purpose for which it is called.
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SECTION 2.8 WAIVER OF NOTICE; ATTENDANCE AT MEETING. (a) A director may
waive any notice required by law, the Articles of Incorporation or these Bylaws
before or after the date and time stated in the notice and such waiver shall be
equivalent to the giving of such notice. Except as provided in paragraph (b) of
this Section, the waiver shall be in writing, signed by the director entitled to
the notice and filed with the minutes or corporate records.
(b) A director's attendance at or participation in a meeting
waives any required notice to him of the meeting unless the director, at the
beginning of the meeting or promptly upon his arrival, objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
SECTION 2.9 QUORUM; VOTING. A majority of the number of directors
determined by the Board of Directors pursuant to these Bylaws shall constitute a
quorum for the transaction of business at a meeting of the Board of Directors.
If a quorum is present when a vote is taken, the affirmative vote of a majority
of the directors present is the act of the Board of Directors. A director who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken is deemed to have assented to the
action taken unless (i) he objects, at the beginning of the meeting or promptly
upon his arrival, to holding it or transacting specified business at the meeting
or (ii) he votes against or abstains from the action taken.
SECTION 2.10 TELEPHONE PARTICIPATION. The Board of Directors may permit
any or all directors to participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of communication by which all
directors participating may simultaneously hear each other during the meeting. A
director participating in a meeting by this means is deemed to be present in
person at the meeting.
SECTION 2.11 ACTION WITHOUT MEETING. Action required or permitted to be
taken at a meeting of the Board of Directors may be taken without a meeting if
the action is taken by all members of the Board. The action shall be evidenced
by one or more written consents stating the action taken, signed by each
director either before or after the action is taken and included in the minutes
or filed with the corporate records. Action taken under this section shall be
effective when the last director signs the consent
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unless the consent specifies a different effective date in which event the
action taken is effective as of the date specified therein provided the consent
states the date of execution by each director.
SECTION 2.12 ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his absence by a chairman
chosen at the meeting. The Secretary, if present, shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
SECTION 2.13 REGULATIONS; MANNER OF ACTING. To the extent consistent
with applicable law, the Articles of Incorporation, and these Bylaws, the Board
of Directors may adopt such rules and regulations for the conduct of meetings of
the Board of Directors and for the management of the property, affairs and
business of the Corporation as the Board of Directors may deem appropriate.
SECTION 2.14 COMPENSATION. The Board of Directors may fix the
compensation of directors and may provide for the payment of all expenses
incurred by them in attending meetings of the Board of Directors or any
Committee thereof.
SECTION 2.15 DIRECTOR EMERITUS. The Board of Directors may appoint to
the position of Director Emeritus any retiring director who has served not less
than five years as a director of the Corporation. Such person so appointed shall
have the title of "Director Emeritus" and shall be entitled to receive notice
of, and to attend all meetings of the Board, but shall not in fact be a
director, shall not be entitled to vote, and shall not be counted in determining
a quorum of the Board and shall not have any of the duties or liabilities of a
director under law.
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ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 CONSTITUTION OF COMMITTEES. The Board of Directors may, by
resolution adopted by a vote of a majority of the directors then in office,
create one or more committees and appoint members of the Board of Directors to
serve on them. Except as otherwise provided in these Bylaws, each such committee
shall consist of two or more members who serve at the pleasure of the Board of
Directors.
SECTION 3.2 AUTHORITY OF COMMITTEE. To the extent specified by the
Board of Directors, each committee may exercise the authority of the Board of
Directors, except that a committee may not (i) approve or recommend to the
shareholders action that is required by law to be approved by shareholders, (ii)
fill vacancies on the Board of Directors or on any of its committees, (iii)
amend the Articles of Incorporation, (iv) adopt, amend, or repeal these Bylaws,
(v) approve a plan of merger not requiring shareholder approval, (vi) authorize
or approve a distribution, except according to a general formula or method
prescribed by the Board of Directors or (vii) authorize or approve the issuance
or sale or contract for sale of shares, or determine the designation and
relative rights, preferences, and limitations of a class or series of shares;
provided, however, that the Board of Directors may authorize a committee, or a
senior executive officer of the Corporation, to do so within limits specifically
prescribed by the Board of Directors.
SECTION 3.3 EXECUTIVE COMMITTEE. The Board of Directors shall appoint
each year an Executive Committee consisting of not less than two directors.
During the intervals between the meetings of the Board of Directors, the
Executive Committee shall have and may exercise, to the fullest extent permitted
by law, all of the powers and authority of the Board of Directors in the
management of the property, affairs and business of the Corporation, except to
the extent such powers or authority are limited by the provisions of Section 3.2
hereof.
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SECTION 3.4 AUDIT COMMITTEE. The Board of Directors shall appoint each
year an Audit Committee consisting of not less than three members, a majority of
whom shall be non-management unaffiliated directors (as defined in Section 6.4
hereof). The Audit Committee shall perform such duties as its members consider
necessary or desirable properly to evaluate and generally to supervise the
Corporation's internal financial controls and accounting procedures, including
the following:
(1) recommending independent public accountants for the
Corporation to the Board of Directors;
(2) determining that the scope of the audit is adequate and
approving the audit fee;
(3) reviewing audit results with the Corporation's independent
public accountants; and
(4) recommending the policy for the scope, frequency, and
method of internal audit reports and reviewing the results thereof.
SECTION 3.5 COMPENSATION COMMITTEE. The Board of Directors shall
appoint each year a Compensation Committee consisting of not less than three
members, a majority of whom shall be non-management unaffiliated directors (as
defined in Section 6.4 hereof). The duties of the Compensation Committee shall
include the following:
(1) reviewing current management compensation programs,
including salaries, bonuses and fringe benefits and the creation of new
officerships;
(2) reviewing and reporting to the Board of Directors on the
funding and adequacy of existing retirement programs, and reporting on
management's recommendations on major changes to existing and creation
of new retirement programs;
(3) awarding and administering pursuant to existing authority,
the Corporation's stock incentive programs and reviewing and
recommending similar future programs, if any;
(4) reviewing top management organization, assisting the Chief
Executive Officer in determining that the Corporation has adequate
depth and breadth of management; and
(5) reviewing the Corporation's programs for attracting,
developing and compensating management personnel.
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SECTION 3.6 PROCEEDINGS. The provisions of these Bylaws which govern
meetings, action without meetings, notice and waiver of notice, and quorum
requirements of the Board of Directors shall apply to committees of directors
and their members as well. Subject to applicable law, the Articles of
Incorporation and these Bylaws, each such committee may fix its own rules of
procedure and may meet at such place within or without the Commonwealth of
Virginia, at such time and upon such notice, if any, as it shall determine from
time to time. Each such committee shall keep minutes of its proceedings and
shall, if requested, report such proceedings to the Board of Directors at the
meeting of the Board of Directors next following any such proceedings.
ARTICLE IV
OFFICERS
SECTION 4.1 OFFICERS GENERALLY. The officers of the Corporation shall
be a Chairman of the Board, a Chief Executive Officer, a Chief Financial Officer
and a Secretary. The Board of Directors at its discretion may also elect a
President, a Chief Operating Officer, a Treasurer, a Controller, one or more
Executive Vice Presidents, one or more Vice Presidents with such further title
or titles as it desires to confer, and one or more Assistant Secretaries,
Assistant Treasurers, Assistant Controllers, and other assistant officers in
such numbers as the Board of Directors may determine. Any number of offices may
be held by the same person. Except for the Chairman of the Board, no officer
need be a director of the Corporation.
SECTION 4.2 ELECTION. Officers shall be elected by the Board of
Directors. The Chief Executive Officer may from time to time appoint other
officers. Officers elected by the Board of Directors shall hold office, unless
sooner removed, until the next annual meeting of the Board of Directors or until
their successors are elected. Officers appointed by the Chief Executive Officer
shall hold office, unless sooner removed, until their successors are appointed.
The action of the Chief Executive Officer in appointing officers shall be
reported to the next regular meeting of the Board of Directors after it is
taken. Any officer may resign at any time upon written notice to the Board of
Directors or the officer appointing him and such resignation shall be effective
when notice is delivered unless the notice specifies a later effective date.
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SECTION 4.3 REMOVAL OF OFFICERS. The Board of Directors may remove any
officer at any time, with or without cause. The Chief Executive Officer may
remove any officer he appoints at any time, with or without cause. Such action
shall be reported to the next regular meeting of the Board of Directors after it
is taken. Any removal of an officer shall be without prejudice to the right to
the recovery of damages for breach of the contract rights, if any, of the person
removed. Election or appointment of an officer shall not of itself create
contract rights.
SECTION 4.4 AUTHORITY AND DUTIES OF OFFICERS. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as are customary for their respective offices and as may be
specified in these Bylaws or as may be determined from time to time by the Board
of Directors, except that in any event each officer shall exercise such powers
and perform such duties as may be required by law.
SECTION 4.5 CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and directors at which he is present
and shall have general control and supervision of the policies and operations of
the Corporation, except as may be limited by the Board of Directors, the
Articles of Incorporation or these Bylaws. He shall have the authority to remove
or suspend any employee or agent of the Corporation elected or appointed by the
Board of Directors. The Chairman of the Board shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
SECTION 4.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
see that all orders and resolutions of the Board of Directors are carried into
effect. He shall manage and administer the Corporation's business and affairs
and shall also perform all duties and exercise all powers usually pertaining to
the office of a chief executive officer of a corporation, except as may be
limited by the Board of Directors, the Articles of Incorporation or these
Bylaws. The Chief Executive Officer may sign, execute and deliver in the name of
the Corporation powers of attorney, contracts, bonds, notes, corporate
obligations and other documents. He shall have the authority to cause the
employment or appointment of such employees and agents of the Corporation (other
than those elected by the Board of Directors) as the conduct of the business of
the Corporation may require, to fix their compensation, and to remove or suspend
any employee or agent appointed by the Chief Executive Officer.
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SECTION 4.7 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have charge of and be responsible for all securities, funds, receipts and
disbursements of the Corporation, and shall deposit or cause to be deposited, in
the name of the Corporation, all monies or valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by or
under authority granted by the Board of Directors; he shall be custodian of the
financial records of the Corporation; he shall keep or cause to be kept full and
accurate records of all receipts and disbursements of the Corporation and shall
render to the Chairman of the Board, the Chief Executive Officer, the President,
if any, and the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and he shall perform such other duties
as may be assigned to him by the Chief Executive Officer or the Board of
Directors.
SECTION 4.8 SECRETARY. The Secretary, subject to the direction of the
Chief Executive Officer, shall have general responsibility for and custody of
the minutes of all meetings of the shareholders 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 shareholders, of the Board of Directors, and of all committees
appointed by the Board of Directors. He shall perform such other duties as from
time to time may be assigned to him by the Chairman of the Board or the Board of
Directors or as may be required by law.
SECTION 4.9 VOTING SECURITIES OF OTHER CORPORATIONS. Unless otherwise
provided by the Board of Directors, any one of the Chairman of the Board, the
Chief Executive Officer, the President, the Secretary or any Assistant Secretary
shall have the power (and may appoint from time to time any other person) to act
for and vote on behalf of the Corporation at all meetings of the shareholders of
any corporation in which the Corporation holds stock or in connection with the
consent of the shareholders in lieu of any such meeting.
SECTION 4.10 BONDS. The Board of Directors may require that any or all
officers, employees and agents of the Corporation give bond to the Corporation,
with sufficient sureties, conditioned upon the faithful performance of the
duties of their respective offices or positions.
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ARTICLE V
CAPITAL STOCK
SECTION 5.1 FORM. Shares of the Corporation shall, when fully paid, be
evidenced by certificates containing such information as is required by law and
approved by the Board of Directors. Certificates for stock of the Corporation
shall be signed by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and by the Secretary or an Assistant Secretary of
the Corporation. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
SECTION 5.2 TRANSFER AGENTS AND REGISTRARS. The Board of Directors
shall have power to appoint one or more transfer agents or 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 or registrars.
SECTION 5.3 TRANSFERS. Upon surrender to the Corporation or to the
transfer agent or registrar of a certificate for shares endorsed or accompanied
by a written assignment signed by the holder of record or by his duly authorized
attorney-in-fact, it shall be the duty of the Corporation or its duly appointed
transfer agent or registrar, to issue a new certificate to the person entitled
thereto, to cancel the old certificate, and to record the transaction on the
books of the Corporation.
SECTION 5.4 RESTRICTIONS ON TRANSFER. A lawful restriction on the
transfer or registration of transfer of shares is valid and enforceable against
the holder or a transferee of the holder if the restriction complies with the
requirements of law and its existence is noted conspicuously on the front or
back of the certificate representing the shares. Unless so noted, a restriction
is not enforceable against a person without knowledge of the restriction.
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SECTION 5.5 LOST CERTIFICATES. The Corporation may issue a new stock
certificate in the place of any certificate theretofore issued by it, alleged to
have been lost, stolen or destroyed, and the Corporation may require the owner
of the lost, stolen or destroyed certificate, or his legal representative, to
give the Corporation a bond (or such other agreement, undertaking or security as
the Corporation shall determine is appropriate) sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
SECTION 5.6 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.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 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 6.2 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 6.3 EXECUTION OF INSTRUMENTS. The Chairman of the Board and the
Chief Executive Officer each may enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation. The Board of
Directors, the Chairman of the Board or the Chief Executive Officer may
authorize any other officer, employee or agent to enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
Any such authorization may be general or limited to specific contracts or
instruments.
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SECTION 6.4 CONSTRUCTION. In the event of any conflict between the
provisions of these Bylaws as in effect from time to time and the provisions of
the Articles of Incorporation of the Corporation as in effect from time to time,
the provisions of the Articles of Incorporation shall be controlling. As used in
these Bylaws, the term "Articles of Incorporation" shall mean the articles of
incorporation of the Corporation filed with the State Corporation Commission
pursuant to ss.13.1-618 of the Virginia Stock Corporation Act, as amended from
time to time. As used herein, unless the context otherwise requires: (i) the
terms defined herein shall have the meaning set forth herein for all purposes;
(ii) the terms "include," "includes," and "including" are deemed to be followed
by "without limitation" whether or not they are in fact followed by such words
or words of like import; (iii) "writing," "written" and comparable terms refer
to printing, typing, handwriting and other means of reproducing words in a
visible form; (iv) "hereof," "herein," "hereunder" and comparable terms refer to
the entirety of these Bylaws and not to any particular article, section or other
subdivision hereof; and (v) references to any gender include references to all
genders, and references to the singular include references to the plural and
vice versa. As used in these Bylaws, the term "non-management unaffiliated
director" means a director who (i) is not a full-time officer or employee of the
Corporation or a former full-time officer or employee of the Corporation who has
a consulting arrangement with the Corporation; (ii) is not related (by blood,
marriage or adoption, not more remote than first cousin) to any other director,
or to any officer of the Corporation or any of its subsidiaries; and (iii) is
not an owner of more than 5% of equity interest in any entity engaged in one or
more transactions with the Corporation or any of its subsidiaries involving (a)
payments in excess of 5% of the lesser of the entity's or the Corporation's
consolidated revenues, or (b) loans to the Corporation or any of its
subsidiaries exceeding 5% of the lesser of the consolidated assets of the
Corporation or the lender.
SECTION 6.5 AMENDMENTS. These Bylaws may be amended or repealed, and
new Bylaws may be made, at any regular or special meeting of the Board of
Directors. Bylaws made by the Board of Directors may be repealed or changed and
new Bylaws may be made by the shareholders, and the shareholders may prescribe
that any Bylaw made by them shall not be altered, amended or repealed by the
Board of Directors.
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