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Exhibit 3(c)
BYLAWS
OF
DELHAIZE AMERICA, INC.
December 31, 2000
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BYLAWS
OF
DELHAIZE AMERICA, INC.
ARTICLE 1
Offices
Section 1. Principal and Registered Office. The principal
office of the corporation shall be located at 2110 Executive Drive, Salisbury,
North Carolina, which shall also be the registered office of the corporation.
Section 2. Other Offices. The corporation may have offices at
such other places, either within or without the State of North Carolina, as the
board of directors may from time to time determine.
ARTICLE 2
Meetings of Shareholders
Section 1. Place of Meeting. Meetings of shareholders shall be
held at the principal office of the corporation, or at such other place, either
within or without the State of North Carolina, as shall be designated in the
notice of the meeting.
Section 2. Annual Meeting. The annual meeting of shareholders
shall be held on such date and at such time during the month of May of each year
as shall be set by the board of directors, for the purpose of electing directors
of the corporation and the transaction of such other business as may be properly
brought before the meeting.
Section 3. Substitute Annual Meeting. If the annual meeting is
not held on the day designated by these bylaws, a substitute annual meeting may
be called in accordance with Section 4 of this Article. A meeting so called
shall be designated and treated for all purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the
shareholders may be called at any time by the president and chief executive
officer or by any two members of the board of directors.
Section 5. Notice of Meetings. At least 10 days and no more
than 60 days prior to any annual or special meeting of the shareholders, the
corporation shall notify shareholders of the date, time and place of the meeting
and, in the case of a special or substitute annual meeting or where otherwise
required by law, shall briefly describe the purpose or purposes of the meeting.
Only business within the purpose or purposes described in the notice may be
conducted at a special meeting. Unless otherwise required by the articles of
incorporation or by law (for example, in the event of a meeting to consider the
adoption of a plan of merger or share exchange, a sale of assets other than in
the ordinary course of business or a voluntary dissolution), the corporation
shall be required to give notice only to shareholders entitled to vote at the
meeting. If an annual or special shareholder's meeting is adjourned to a
different date, time or place, notice thereof 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 fixed pursuant to Article 7, Section 5 hereof,
notice of the adjourned meeting shall be given to persons who are shareholders
as of the new record date. It shall be the primary responsibility of the
secretary to give the notice, but notice may be given by or at the direction of
the president and chief executive officer or other person or persons calling the
meeting. If mailed, such notice shall be deemed to be effective when deposited
in the United States mail with postage thereon prepaid, correctly addressed to
the shareholder's address shown in the corporation's current record of
shareholders.
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Section 6. Advance Notice of Shareholder Proposals. No
business shall be transacted at a meeting of shareholders, except such business
as shall be (a) specified in the notice of meeting given as provided in Section
5 of this Article 2, (b) otherwise brought before the meeting by or at the
direction of the board of directors, or (c) otherwise brought before the meeting
by a shareholder of record entitled to vote at the meeting, in compliance with
the procedure set forth in this Section 6. For business to be brought before a
meeting by a shareholder pursuant to (c) above, the shareholder must have given
timely notice in writing to the Secretary. To be timely, a shareholder's notice
must be delivered to, or mailed to and received by, the Secretary of the
corporation not less than 10 days nor more than 60 days prior to the meeting;
provided, however, that if fewer than 21 days' notice of the meeting is given to
shareholders, such written notice shall be received not later than the close of
the tenth day following the date on which notice of the meeting was mailed to
shareholders. Notwithstanding the foregoing, any shareholder who wishes the
board of directors to consider taking a position with respect to the matter must
deliver such notice to, or mail it so that it is received by, the Secretary of
the corporation not less than 90 nor more than 150 days prior to the meeting.
Nothing in this Section 6 shall require the board of directors to recommend for
adoption by the shareholders, or give the shareholders notice of, any matter of
which notice is provided to the corporation pursuant to this Section or
otherwise. Notice of actions to be brought before the meeting pursuant to (c)
above shall set forth as to each matter the shareholder proposes to bring before
the meeting (i) a brief description of the business desired to be brought before
the meeting, (ii) the name and address, as they appear on the corporation's
books, of each shareholder proposing such business, and (iii) the classes and
number of shares of the corporation that are owned of record and beneficially by
such shareholder of the corporation. Notwithstanding anything in these bylaws to
the contrary, no business shall be conducted at a meeting except in accordance
with the provisions set forth in this Section 6, except as otherwise may be
required by law. Nothing in this Section 6 shall be deemed to restrict, expand
or otherwise affect any rights or obligations of any party under Rule 14a-8 of
the Securities and Exchange Commission or any successor provision to such rule.
If the chairman of the meeting determines that any business was not properly
brought before the meeting in accordance with provisions prescribed by these
bylaws, he shall so declare to the meeting, and to the extent permitted by law
any such business not properly brought before the meeting shall not be
transacted.
Section 7. Quorum. A majority of the votes entitled to be cast
by a voting group on a matter, represented in person or by proxy at a meeting of
shareholders, shall constitute a quorum for that voting group for any action on
that matter, unless quorum requirements are otherwise fixed by a court of
competent jurisdiction acting pursuant to Section 55-7-03 of the General
Statutes of North Carolina. Once a share is represented for any purpose at a
meeting, it shall be deemed present for quorum purposes for the remainder of the
meeting and any adjournment thereof, unless a new record date is or must be set
for the adjournment. Action may be taken by a voting group at any meeting at
which a quorum of that voting group is represented, regardless of whether action
is taken at that meeting by any other voting group. In the absence of a quorum
at the opening of any meeting of shareholders, such meeting may be adjourned
from time to time by a vote of the majority of the shares voting on the motion
to adjourn.
Section 8. Shareholders' List. After a record date is fixed
for a meeting, the secretary of the corporation shall prepare an alphabetical
list of the names of all its shareholders who are entitled to notice of the
shareholders' meeting. Such list shall be arranged by voting group (and within
each voting group by class or series of shares) and shall show the address of
and number of shares held by each shareholder. The shareholder's list shall be
made available for inspection by any shareholder, beginning two business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting, at the corporation's principal office or at such
other place identified in the meeting notice and the city where the meeting will
be held. The corporation shall make the shareholders' list available at the
meeting, and any shareholder or his agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment thereof.
Section 9. Voting of Shares. Except as otherwise provided by
the articles of incorporation, each outstanding share of voting capital stock of
the corporation shall be entitled to one vote on each matter submitted to a vote
at a meeting of the shareholders. Action on a matter by a voting group for which
a quorum is present is approved if the votes cast within the voting group
favoring the action exceed the votes cast opposing the action, unless the vote
of a greater number is required by law or by the articles of incorporation.
Voting on all matters shall be by voice vote or by a show of hands, unless the
holders of one-tenth of the shares represented at the meeting shall demand a
ballot vote on a particular matter. Absent special circumstances, the shares of
the corporation are not entitled to vote if they are owned, directly or
indirectly, by a second corporation, domestic or foreign, and the corporation
owns, directly or indirectly, a majority of the shares entitled to vote for
directors of the second corporation, except that this provision shall not limit
the power of the corporation to vote shares held by it in a fiduciary capacity.
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Section 10. Proxies. Shares may be voted either in person or
by a proxy who has been appointed by the shareholder by signing an appointment
form, either personally or by his duly authorized attorney-in-fact. An
appointment of proxy is effective when received by the secretary or other
officer or agent authorized to tabulate votes. An appointment of proxy is valid
for 11 months unless a different period is expressly provided in the appointment
form.
Section 11. Action Without Meeting. Any action which the
shareholders could take at a meeting may be taken without a meeting if one or
more written consents, setting forth the action taken, shall be signed, before
or after such action, by all the shareholders who would be entitled to vote upon
the action at a meeting. The consent shall be delivered to the corporation for
inclusion in the minutes or filing with the corporate records. The corporation
must give its nonvoting shareholders written notice of the proposed action at
least 10 days before the action is taken, which notice must contain or be
accompanied by the same material that would have been required by law to be sent
to nonvoting shareholders in a notice of meeting at which the proposed action
would have been submitted to the shareholders for action.
ARTICLE 3
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed under the direction of the board of directors
except as otherwise provided by the articles of incorporation or by a valid
shareholders' agreement.
Section 2. Number, Term and Qualification. The number of
directors of the corporation shall be not less than eight persons nor more than
14 persons, with the exact number of directors within the minimum and maximum to
be established from time to time by the shareholders or, unless the articles of
incorporation or a valid shareholders' agreement provides otherwise, the board
of directors; but, in the absence of such action, the number of directors
elected at the annual meeting shall constitute the number of directors of the
corporation until the next annual meeting of shareholders, unless the number is
previously changed by action of the shareholders or the board of directors. Only
shareholders may change the range for the size of the board of directors or
change from a variable range to a fixed size board of directors. Each director
shall hold office until the next annual meeting of the shareholders and until
his successor is elected and qualifies, until there is a decrease in the number
of directors or until his earlier death, resignation, removal or
disqualification. Directors need not be residents of the State of North Carolina
or shareholders of the corporation unless the articles of incorporation so
provide. No person after having attained the age of 70 years shall be allowed to
run for election, reelection or re-appointment to the board of directors,
excepting, however, that such retirement age shall not apply to directors over
the age of 65 years who were serving on such board on July 3, 1997.
Section 3. Nomination of Directors. Only persons who are
nominated in accordance with the provisions set forth in these bylaws shall be
eligible to be elected as directors at the annual or special meeting of
shareholders. Nomination for election to the board of directors shall be made or
approved by the board of directors.
In addition, nomination for election of any person to the
board of directors may be made by a shareholder if written notice of the
nomination of such person shall have been delivered to the Secretary of the
corporation at the principal office of the corporation not less than 10 days nor
more than 60 days prior to any meeting of the shareholders called for the
election of directors; provided, however, that if fewer than 21 days' notice of
the meeting is given to shareholders, such written notice shall be received not
later than the close of the tenth day following the day on which notice of the
meeting was mailed to shareholders. Notwithstanding the foregoing, any
shareholder who wishes the board of directors or a duly authorized committee of
the board of directors to consider nominating for election to the board of
directors a person recommended by a shareholder must deliver such notice to, or
mail it so that it is received by, the Secretary of the corporation not less
than 90 nor more than 150 days prior to the meeting. Any notice provided
pursuant to this Section shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the shareholder is a holder of record of
shares of the corporation 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; (c) a description of all arrangements or
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understandings between the 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 by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission if the nominee had been nominated by the
board of directors; and (e) the written consent of each nominee to serve as a
director of the corporation if so elected. Nothing in this Section shall require
the board of directors to nominate or approve, as one of its nominees, any
person recommended to be so nominated by a shareholder or to give the
shareholders notice of any proposed nomination by a shareholder. The chairman of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 4. Election. Except as provided in Section 6 of this
Article 3 (Vacancies), the directors shall be elected at the annual meeting of
shareholders. Those persons who receive the highest number of votes at a meeting
at which a quorum is present shall be deemed to have been elected.
Section 5. Removal. Directors may be removed from office with
or without cause (unless the articles of incorporation provide that directors
may be removed only for cause), provided the notice of the shareholders' meeting
at which such action is to be taken states that a purpose of the meeting is
removal of the director and the number of votes cast to remove the director
exceeds the number of votes cast not to remove him.
Section 6. Vacancies. Except as otherwise provided in the
articles of incorporation, a vacancy occurring in the board of directors,
including, without limitation, a vacancy resulting from an increase in the
number of directors or from the failure by the shareholders to elect the full
authorized number of directors, shall be filled by an affirmative vote of at
least 70% of the remaining directors in favor of a nominee selected by the
Nominating Committee of the board of directors, in accordance with the
procedures set forth in Article 5, Section 2, below. The shareholders may elect
a director at any time to fill a vacancy not filled by the directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office.
Section 7. Compensation. The board of directors may compensate
directors for their services as such and may provide for the payment of any or
all expenses incurred by directors in attending regular and special meetings of
the board of directors.
ARTICLE 4
Meetings of Directors
Section 1. Annual and Regular Meetings. The annual meeting of
the board of directors shall be held immediately following the annual meeting of
the shareholders. The board of directors may by resolution provide for the
holding of regular meetings of the board on specified dates and at specified
times. Notice of regular meetings held at the principal office of the
corporation and at the usual scheduled time shall not be required. If any date
for which a regular meeting is scheduled shall be a legal holiday, the meeting
shall be held on a date designated in the notice of the meeting, if any, during
either the same week in which the regularly scheduled date falls or during the
preceding or following week. Regular meetings of the board shall be held at the
principal office of the corporation or at such other place as may be designated
in the notice of the meeting.
Section 2. Special Meetings. Special meetings of the board of
directors may be called by or at the request of the chairman of the board, the
president and chief executive officer or any two directors. Such meetings may be
held at the time and place designated in the notice of the meeting.
Section 3. Notice of Meetings. Unless the articles of
incorporation provide otherwise, the annual and regular meetings of the board of
directors may be held without notice of the date, time or place. However, the
president and chief executive officer or secretary shall provide each director
with a written agenda of the items to be discussed at such meetings at least
seven days prior thereto. Any person or persons calling a special meeting shall
give notice by any usual means of communication to be sent at least seven days
before the meeting if notice is sent by means of telephone, telecopy or personal
delivery and at least ten days before the meeting if notice is sent by mail. A
director's attendance at, or participation in, a meeting for which notice is
required shall constitute a waiver of notice,
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unless the director at the beginning of the meeting (or promptly upon arrival)
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote or assent to action taken at the meeting.
Section 4. Quorum. Except as otherwise provided in the
articles of incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business at a meeting of the board of
directors.
Section 5. Manner of Acting. Except as otherwise provided in
the articles of incorporation or these bylaws, the act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors.
Section 6. Special Vote. The board of directors may not,
without an affirmative vote of at least 70% of the number of directors fixed
pursuant to these bylaws ("Special Vote"), be empowered to authorize the
corporation to:
(a) Approve the nomination of any person or persons
for election to the board of directors or elect a chief executive
officer;
(b) Authorize any contract involving payment by the
corporation of cash or property valued in excess of $500,000,
including, without limitation, the purchase, sale or leasing of
property or the incurring of indebtedness, except transactions relating
to the leasing or construction of stores, warehouses and related
facilities or any other transaction in the ordinary course of business;
(c) Approve or authorize capital expenditures of more
than $500,000 in any one instance or $1,000,000 in the aggregate in any
fiscal year, except expenditures relating to the leasing or
construction of stores, warehouses and related facilities or any other
transaction in the ordinary course of business;
(d) Authorize the issuance or sale of stock or other
securities of the corporation or any subsidiary of the corporation, or
options or warrants or obligations convertible into such stock or
securities, except the issuance of stock options or stock or both, as
the case may be, pursuant to the corporation's 1996 Employee Stock
Option Plan, Employee Stock Purchase Plan and Employee Stock Ownership
Plan and other employee benefit plans approved by the board of
directors;
(e) Sell or otherwise dispose of a substantial part
of the corporation's assets other than in the ordinary course of
business;
(f) Amend the charter or the bylaws of the
corporation; or
(g) Approve for submission to the shareholders of the
corporation for their approval a proposal for the amendment of the
corporation's charter or the merger or consolidation of the corporation
with or into any other corporation or the reorganization,
recapitalization or liquidation of the corporation;
Any Special Vote approving any such action may specify other
limitations which shall not be exceeded without a further Special Vote.
Section 7. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors at which
action on any corporate matter is taken is deemed to have assented to the action
taken unless he objects at the beginning of the meeting (or promptly upon
arrival) to holding, or transacting business at, the meeting, or unless his
dissent or abstention is entered in the minutes of the meeting or unless he
shall file written notice of his dissent or abstention to such action with the
presiding officer of the meeting before its adjournment or with the corporation
immediately after adjournment of the meeting. The right of dissent or abstention
shall not apply to a director who voted in favor of such action.
Section 8. Action Without Meeting. Unless otherwise provided
in the articles of incorporation, 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 must be evidenced by one or
more written consents signed by
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each director before or after such action, describing the action taken, and
included in the minutes or filed with the corporate records. Action taken
without a meeting is effective when the last director signs the consent, unless
the consent specifies a different effective date.
Section 9. Meeting by Communications Device. Unless otherwise
provided in the articles of incorporation, 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 10. Minutes of Meeting of the Board of Directors.
Minutes of all meetings of the board of directors shall be furnished to all
directors promptly after such meeting.
ARTICLE 5
Committees
Section 1. General. The board of directors may create, by the
affirmative vote of at least 70 % of the number of directors then serving, one
or more committees not otherwise provided for by these bylaws. Such committees
shall consist of two or more directors appointed and removable by the
affirmative vote of at least 70% of the number of directors then serving. Such
committees may meet at stated times, or on notice to all by any of their own
number. The board of directors may by resolution provide that during intervals
between meetings of the board of directors, the committees shall have and may
exercise the powers of the board in the management of the business and affairs
of the corporation, except that the committees shall not have authority to:
(a) Authorize distributions;
(b) Approve or propose to shareholders action
required to be approved by shareholders;
(c) Fill vacancies on the board of directors or
on any of its committees;
(d) Amend the articles of incorporation;
(e) Adopt, amend or repeal the bylaws;
(f) Approve a plan or merger not requiring
shareholder approval;
(g) Authorize or approve reacquisition of
shares, except according to a formula or
method prescribed by the board of directors;
or
(h) Authorize or approve the issuance, sale or
contract for sale of shares, or determine
the designation and relative rights,
preferences and limitations of a class or
series of shares, except 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 2. Nominating Committee. There shall be a Nominating
Committee of the board of directors, which shall consist of three directors, one
of whom shall be designated by Etablissements Delhaize Freres et Cie "Le Lion"
S.A. ("Delhaize") and/or Delhaize the Lion America, Inc., one of whom shall be
the Chief Executive Officer of the Company or his designee from among the
members of the board of directors of the Company, and one of whom shall be an
independent director. The Nominating Committee shall propose to the board of
directors (a) the slate of directors to be submitted to the shareholders for
election at the annual meeting of
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shareholders or at any meeting of the shareholders at which a director or
directors are to be elected, and (b) persons to fill any vacancies that may
arise from time to time on the board of directors.
The slate of directors proposed by the Nominating Committee
shall consist of ten persons, four of whom shall be proposed by the Chief
Executive Officer of Delhaize (the "Delhaize Designees"), two of whom shall be
proposed by the Chief Executive Officer of the Company or his representative on
the Nominating Committee (the "CEO Designees") and four of whom shall be
independent directors. In the event of a vacancy on the board of directors, the
Nominating Committee shall propose to the board of directors an appropriate
person to fill such vacancy such that the foregoing ratio of Delhaize Designees,
CEO Designees and independent directors is regained. Thus, if a Delhaize
Designee ceases to be a director, the vacancy left thereby shall be filled by a
new Delhaize Designee, if a CEO Designee ceases to be a director, the vacancy
left thereby shall be filled by a new CEO Designee, and if an independent
director ceases to be a director, the vacancy left thereby shall be filled by a
new independent director.
The Nominating Committee shall recommend its slate of
directors or any individual nominee to the board of directors of the Company,
which shall approve such nominations by Special Vote. If the board of directors
does not approve a slate of directors or any individual nominee proposed by the
Nominating Committee, the Nominating Committee shall meet to propose another
slate of directors or nominee acceptable to the board of directors.
The Nominating Committee shall meet at least (a) annually,
prior to the annual meeting of shareholders, (b) prior to any special meeting of
shareholders called for the purpose of electing one or more directors, (c)
within thirty days' notice of any vacancy occurring on the board of directors,
and (d) at any time that it is determined that the composition of the Company's
board of directors does not comply with any laws or rules that apply to the
Company, including the rules of the National Association of Securities Dealers
or any national securities exchange on which the Company's securities are
listed. Meetings of the Nominating Committee shall be held at such place as is
fixed by the chairman thereof in the notice of the meeting. The provisions of
Article 4 governing action without a meeting, notice, waiver of notice and
quorum requirements shall apply to the Nominating Committee. All decisions of
the Nominating Committee shall require the affirmative vote of at least two
members.
Section 3. Meetings. Except as otherwise provided in these
bylaws, the provisions of Article 4 governing meetings of the board of
directors, action without meeting, notice, waiver of notice, presumption of
assent and quorum and voting requirements shall apply to the committees of the
board and its members.
Section 4. Minutes. The committees shall keep minutes of their
proceedings and documentation of their decisions and shall transmit copies
thereof and report thereon to the board of directors at or before the next
meeting of the board.
ARTICLE 6
Officers
Section 1. Titles. The officers of the corporation shall be a
chairman of the board, a president and chief executive officer, a secretary and
a treasurer. The board of directors or the president and chief executive officer
(if authorized by the board) may appoint one or more vice presidents, one or
more assistant secretaries, one or more assistant treasurers and such other
officers as shall be deemed necessary. The additional officers shall have the
authority and perform the duties as from time to time may be prescribed by the
board of directors or by direction of the president and chief executive officer
(if authorized by the board of directors to prescribe the authority and duties
of other officers). Any two or more offices may be held by the same individual,
but no officer may act in more than one capacity where action of two or more
officers is required.
Section 2. Election; Appointment. The officers of the
corporation shall be elected from time to time by the board of directors or
appointed from time to time by the president and chief executive officer (to the
extent that the president and chief executive officer is authorized by the board
to appoint officers).
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Section 3. Removal. Any officer may be removed by the board at
any time with or without cause whenever in its judgment the best interests of
the corporation will be served, but removal shall not itself affect the
officer's contract rights, if any, with the corporation.
Section 4. Vacancies. Vacancies among the officers may be
filled and new officers may be created and filled by the board of directors, or
by the president and chief executive officer (to the extent authorized by the
board).
Section 5. Compensation. Except as otherwise provided in these
bylaws, the compensation of the officers shall be fixed by the board of
directors.
Section 6. Chairman and Vice Chairman of the Board of
Directors. The chairman of the board of directors shall preside at meetings of
the shareholders and the board of directors and shall have such other authority
and perform such other duties as the board of directors shall designate. The
vice chairman, if elected, shall preside at meetings of the board in the absence
of the chairman and shall have such other authority and perform such other
duties as the board of directors shall designate.
Section 7. President and Chief Executive Officer. In the
absence of the chairman of the board, the president and chief executive officer
shall preside at all meetings of the shareholders and the board of directors.
Subject to the board of directors, he shall be the principal executive officer
of the corporation and shall have general charge of the business of the
corporation; he shall keep the board of directors fully informed of the business
of the corporation; he may sign and execute all authorized bonds, contracts, or
other obligations in the name of, and on behalf of, the corporation, and with
the secretary or assistant secretary, if one be elected, may sign all
certificates of stock, and without further authorization than these presents,
may sign all checks or drafts upon funds of this corporation, in its name and on
its behalf, and any bank or depository in which funds of the corporation shall
be deposited shall be fully and conclusively protected in honoring any checks or
drafts on behalf of this corporation, signed by the president and chief
executive officer. Subject to the limitations of Section 6(e) of Article 4 of
these bylaws, he shall have the power to fix the salaries of all other officers,
agents and employees of the corporation, except the chairman and vice presidents
(including senior vice presidents, if any); and shall have the power to employ
and discharge all agents and employees of the corporation, subject to the
control of the board of directors, except the chairman and vice presidents. He
shall generally conduct the affairs of the corporation and shall do and perform
such other duties as, from time to time, may be assigned to him by the board of
directors or by these bylaws.
Section 8. Vice Presidents. The vice presidents shall perform
such duties as from time to time may be assigned to them by the chairman of the
board or the president and chief executive officer, the board of directors or by
these bylaws.
Section 9. Secretary. The secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders and of the
board of directors and shall give all notices required by law and by these
bylaws. The secretary shall have general charge of the corporate books and
records and shall have the responsibility and authority to maintain and
authenticate such books and records. The secretary shall have general charge of
the corporate seal and shall affix the corporate seal to any lawfully executed
instrument requiring it. The secretary shall have general charge of the stock
transfer books of the corporation and shall keep at the principal office of the
corporation a record of shareholders, showing the name and address of each
shareholder and the number and class of shares held by each. The secretary shall
sign such instruments as may require the signature of the secretary, and in
general shall perform the duties incident to the office of secretary and such
other duties as may be assigned from time to time by the board of directors or
the president and chief executive officer (if authorized by the board of
directors to prescribe the authority and duties of other officers).
Section 10. Assistant Secretaries. Each assistant secretary
shall have such powers and perform such duties as may be assigned by the board
of directors or the president and chief executive officer (if authorized by the
board of directors to prescribe the authority and duties of other officers), and
the assistant secretaries shall exercise the powers of the secretary during that
officer's absence or inability to act.
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Section 11. Treasurer. The treasurer shall have custody of all
funds and securities belonging to the corporation and shall receive, deposit or
disburse the same under the direction of the board of directors. The treasurer
shall keep full and accurate accounts of the finances of the corporation and
shall cause a true statement of the assets and liabilities of the corporation as
of the close of each fiscal year and of the results of its operations and of
changes in surplus, all in reasonable detail, to be made and filed at the
principal office of the corporation within four months after the end of the
fiscal year. The statement shall be available for inspection by any shareholder
for a period of ten years, and the treasurer shall mail or otherwise deliver a
copy of the latest statement to any shareholder upon written request. The
treasurer shall in general perform all duties incident to the office and such
other duties as may be assigned from time to time by the board of directors or
the president and chief executive officer (if authorized by the board of
directors to prescribe the authority and duties of other officers).
Section 12. Assistant Treasurers. Each assistant treasurer
shall have such powers and perform such duties as may be assigned by the board
of directors or the president and chief executive officer (if authorized by the
board of directors to prescribe the authority and duties of other officers), and
the assistant treasurers shall exercise the powers of the treasurer during that
officer's absence or inability to act.
Section 13. Voting Upon Stocks. Unless otherwise ordered by
the board of directors, the president and chief executive officer shall have
full power and authority in behalf of the corporation to attend, act and vote at
meetings of the shareholders of any corporation in which this corporation may
hold stock, and at such meetings shall possess and may exercise any and all
rights and powers incident to the ownership of such stock and which, as the
owner, the corporation might have possessed and exercised if present. The board
of directors may by resolution from time to time confer such power and authority
upon any other person or persons.
ARTICLE 7
Capital Stock
Section 1. Certificates. Shares of the capital stock of the
corporation shall be represented by certificates. The name and address of the
persons to whom shares of capital stock of the corporation are issued, with the
number of shares and date of issue, shall be entered on the stock transfer
records of the corporation. Certificates for shares of the capital stock of the
corporation shall be in such form not inconsistent with the articles of
incorporation of the corporation as shall be approved by the board of directors.
Each certificate shall be signed (either manually or by facsimile) by (a) the
president and chief executive officer or any vice president and by the
secretary, assistant secretary, treasurer or assistant treasurer or (b) any two
officers designated by the board of directors. Each certificate may be sealed
with the seal of the corporation or a facsimile thereof.
Section 2. Transfer of Shares. Transfer of shares shall be
made on the stock transfer records of the corporation, and transfers shall be
made only upon surrender of the certificate for the shares sought to be
transferred by the recordholder or by a duly authorized agent, transferee or
legal representative. All certificates surrendered for transfer or reissue shall
be canceled before new certificates for the shares shall be issued.
Section 3. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents and one or more registrars of
transfers and may require all stock certificates to be signed or countersigned
by the transfer agent and registered by the registrar of transfers.
Section 4. Regulations. The board of directors may make rules
and regulations as it deems expedient concerning the issue, transfer and
registration of shares of capital stock of the corporation.
Section 5. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders, or
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other purpose, the board of directors may fix in advance
a date as the record date for the determination of shareholders. The record date
shall 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 the shareholders' meeting shall be effective for any
adjournment of the meeting unless the board of directors fixes a new
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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. If no record date is
fixed for the determination of shareholders, the record date shall be the day
the notice of the meeting is mailed or the day the action requiring a
determination of shareholders is taken. If no record date is fixed for action
without a meeting, the record date for determining shareholders entitled to take
action without a meeting shall be the date the first shareholder signs a consent
to the action taken.
Section 6. Lost Certificates. The board of directors must
authorize the issuance of a new certificate in place of a certificate claimed to
have been lost, destroyed or wrongfully taken, upon receipt of (a) an affidavit
from the person explaining the loss, destruction or wrongful taking, and (b) a
bond from the claimant in a sum as the corporation may reasonably direct to
indemnify the corporation against loss from any claim with respect to the
certificate claimed to have been lost, destroyed or wrongfully taken. The board
of directors may, in its discretion, waive the affidavit and bond and authorize
the issuance of a new certificate in place of a certificate claimed to have been
lost, destroyed or wrongfully taken.
ARTICLE 8
Indemnification of Officers and Directors
Section 1. Indemnification Provisions. Any person who at any
time serves or has served as a director or officer of the corporation or of any
wholly owned subsidiary of the corporation, or in such capacity at the request
of the corporation for any other foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or as a trustee or administrator under
any employee benefit plan of the corporation or of any wholly owned subsidiary
thereof (a "Claimant"), shall have the right to be indemnified and held harmless
by the corporation to the fullest extent from time to time permitted by law
against all liabilities and litigation expenses (as hereinafter defined) in the
event a claim shall be made or threatened against that person in, or that person
is made or threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the corporation,
including all appeals therefrom (a "proceeding"), arising out of that person's
status as such or that person's activities in any such capacity; provided, that
such indemnification shall not be effective with respect to (a) that portion of
any liabilities or litigation expenses with respect to which the Claimant is
entitled to receive payment under any insurance policy or (b) any liabilities or
litigation expenses incurred on account of any of the Claimant's activities
which were at the time taken known or believed by the Claimant to be clearly in
conflict with the best interests of the corporation.
Section 2. Definitions. As used in this Article, (a)
"liabilities" shall include, without limitation, (1) payments in satisfaction of
any judgment, money decree, excise tax, fine or penalty for which the Claimant
had become liable in any proceeding and (2) payments in settlement of any such
proceeding subject, however, to Section 3 of this Article 8; (b) "litigation
expenses" shall include, without limitation, (1) reasonable costs and expenses
and attorneys' fees and expenses actually incurred by the Claimant in connection
with any proceeding and (2) reasonable costs and expenses and attorneys' fees
and expenses in connection with the enforcement of rights to the indemnification
granted hereby or by applicable law, if such enforcement is successful in whole
or in part; and (c) "disinterested directors" shall mean directors who are not
party to the proceeding in question.
Section 3. Settlements. The corporation shall not be liable to
indemnify the Claimant for any amounts paid in settlement of any proceeding
effected without the corporation's written consent. The corporation will not
unreasonably withhold its consent to any proposed settlement.
Section 4. Litigation Expense Advances.
(a) Except as provided in subsection (b) below, any litigation
expenses shall be advanced to any Claimant within 30 days of receipt by the
secretary of the corporation of a demand therefor, together with an undertaking
by or on behalf of the Claimant to repay to the corporation such amount unless
it is ultimately determined that Claimant is entitled to be indemnified by the
corporation against such expenses. The secretary shall promptly forward notice
of the demand and undertaking immediately to all directors of the corporation.
(b) Within 10 days after mailing of notice to the directors
pursuant to subsection (a) above, any disinterested director may, if desired,
call a meeting of all disinterested directors to review the reasonableness of
the
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expenses so requested. No advance shall be made if a majority of the
disinterested directors affirmatively determines that the item of expense is
unreasonable in amount; but if the disinterested directors determine that a
portion of the expense item is reasonable, the corporation shall advance such
portion.
Section 5. Approval of Indemnification Payments. Except as
provided in Section 4 of this Article, the board of directors of the corporation
shall take all such action as may be necessary and appropriate to authorize the
corporation to pay the indemnification required by Section 1 of this Article,
including, without limitation, making a good faith evaluation of the manner in
which the Claimant acted and of the reasonable amount of indemnity due the
Claimant. In taking any such action, any Claimant who is a director of the
corporation shall not be entitled to vote on any matter concerning such
Claimant's right to indemnification.
Section 6. Suits by Claimant. No Claimant shall be entitled to
bring suit against the corporation to enforce his rights under this Article
until sixty days after a written claim has been received by the corporation,
together with any undertaking to repay as required by Section 4 of this Article.
It shall be a defense to any such action that the Claimant's liabilities or
litigation expenses were incurred on account of activities described in clause
(b) of Section 1, but the burden of proving this defense shall be on the
corporation. Neither the failure of the corporation to have made a determination
prior to the commencement of the action to the effect that indemnification of
the Claimant is proper in the circumstances, nor an actual determination by the
corporation that the Claimant had not met the standard of conduct described in
clause (b) of Section 1, shall be a defense to the action or create a
presumption that the Claimant has not met the applicable standard of conduct.
Section 7. Consideration; Personal Representatives and Other
Remedies. Any person who during such time as this Article or corresponding
provisions of predecessor bylaws is or has been in effect serves or has served
in any of the aforesaid capacities for or on behalf of the corporation, shall be
deemed to be doing so or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein or therein. The right of
indemnification provided herein or therein shall inure to the benefit of the
legal representatives of any person who qualifies or would qualify as a Claimant
hereunder, and the right shall not be exclusive of any other rights to which the
person or legal representative may be entitled apart from this Article.
Section 8. Scope of Indemnification Rights. The rights granted
herein shall not be limited by the provisions of Section 55-8-51 of the General
Statutes of North Carolina or any successor statute.
ARTICLE 9
General Provisions
Section 1. Dividends and other Distributions. The board of
directors may from time to time declare, and the corporation may pay or make,
dividends and other distributions with respect to its outstanding shares in the
manner and upon the terms and conditions provided by law.
Section 2. Seal. The seal of the corporation shall consist of
two concentric circles between which is the name of the corporation and in the
center of which is inscribed SEAL; and such seal as is impressed in the margin
hereof is hereby adopted as the corporate seal of the corporation.
Section 3. Waiver of Notice. Whenever notice is required to be
given to a shareholder, director or other person under the provisions of these
bylaws, the articles of incorporation or by applicable law, a waiver in writing
signed by the person or persons entitled to the notice, whether before or after
the date and time stated in the notice and delivered to the corporation, shall
be equivalent to giving the notice.
Section 4. Checks. All checks, drafts or orders for the
payment of money shall be signed by the officer or officers or other individuals
that the board of directors may from time to time designate.
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Section 5. Contracts. The board of directors may authorize any
officer or officers, agent or agents to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and such
authority may be generally or confined to specific instances.
Section 6. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such depositories as the board of directors may select.
Section 7. Bond. The board of directors may by resolution
require any or all officers, agents and employees of the corporation to give
bond to the corporation, with sufficient sureties, conditioned on the faithful
performance of the duties of their respective offices or positions, and to
comply with such other conditions as may from time to time be required by the
board.
Section 8. Fiscal Year. The fiscal year of the corporation
shall be fixed by the board of directors.
Section 9. Amendments. Unless otherwise provided in the
articles of incorporation or a bylaw adopted by the shareholders or by law,
these bylaws may be amended or repealed by the board of directors in accordance
with the special voting provisions contained in Article 4, Section 6, except
that a bylaw adopted, amended or repealed by the shareholders may not be
readopted, amended or repealed by the board of directors if neither the articles
of incorporation nor a bylaw adopted by the shareholders authorizes the board of
directors to adopt, amend or repeal that particular bylaw or the bylaws
generally. These bylaws may also be amended or repealed by the board of
directors. A bylaw that fixes a greater quorum or voting requirement for the
board of directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders, unless such bylaw as originally adopted
by the shareholders provides that such bylaw may be amended or repealed by the
board of directors of (b) if originally adopted by the board of directors,
either by the shareholders or by the board of directors. A bylaw that fixes a
greater quorum or voting requirement may not be adopted by the board of
directors by a vote less than a majority of the directors then in office and may
not itself be amended by a quorum or vote of the directors less than a quorum or
vote prescribed in such bylaw or prescribed by the shareholders.
Section 10. Nonapplication of North Carolina Shareholder
Protection Act. The provisions of Article 9 of the North Carolina Business
Corporation Act entitled "The North Carolina Shareholder Protection Act" shall
not be applicable to the corporation.
Section 11. Nonapplication of North Carolina Control Share
Acquisition Act. The provisions of Article 9A of the North Carolina Business
Corporation Act entitled "The North Carolina Control Share Acquisition Act"
shall not be applicable to the corporation.
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THIS IS TO CERTIFY that the above bylaws of Delhaize America, Inc.,
were duly adopted by the board of directors of the corporation, effective May 4,
1995, and amended by the board of directors of the corporation effective July 3,
1997, and further amended by the shareholders of the corporation effective
September 7, 1999 and May 4, 2000, and further amended by the board of directors
of the corporation effective December 31, 2000, all by action taken at duly
called meetings of the board of directors or shareholders as required by the
General Statutes of North Carolina.
This 31st day of December, 2000.
/s/ G. Linn Evans
-----------------------------
G. Linn Evans, Assistant Secretary
[Corporate Seal]
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