EXHIBIT 3.21
BY-LAWS
OF
POLLO OPERATIONS, INC.
ARTICLE I
Offices
Section l. Registered Office. The initial registered office of Pollo Operations,
Inc., a Florida corporation (the "Corporation"), shall be located in the City of
Miami, State of Florida.
Section 2. Other Offices. The Corporation may also have offices at such other
places, either within or without the State of Florida, as the Board of Directors
of the Corporation (the "Board of Directors") may from time to time determine or
as the business of the Corporation may require.
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. All annual meetings of the shareholders of the
corporation for the election of directors and for such other business as may
properly come before the meeting shall be held (i) on the fourth Friday of May
of each calendar year at 10:00 a.m., Eastern time, or on such other date or at
such other time as may be fixed, from time to time, by the Board of Directors,
and (ii) at such place, within or without the State of Florida, as may be
designated by or on behalf of the Board of Directors and stated in the notice of
meeting or in a duly executed waiver of notice thereof.
Section 2. Special Meetings. Special meetings of the shareholders may be called
by the Board of Directors, the President or the holders of not less than
thirty-three and one-third percent (33 1/3%) of the Corporation's stock entitled
to vote on any issue proposed to be considered at such meeting. Special meetings
of shareholders may be held at such time and date, and at such place, within or
without the State of Florida, as shall be designated by the Board of Directors
and set forth in the notice of meeting required pursuant to Section 3 of this
Article.
Section 3. Notice. A written notice of each meeting of shareholders shall be
given to each shareholder entitled to vote at the meeting at the address as it
appears on the stock transfer records of the Corporation, not less than ten (10)
nor more than sixty (60) days before the date of the meeting, by or at the
direction of the President, the Secretary or the officer or persons calling the
meeting. The notice so given shall state the date, time and place
of the meeting and, in the case of a special shareholders' meeting, the purpose
or purposes for which the meeting is called.
Section 4. Waiver of Notice. Shareholders may waive notice of any meeting before
or after the date and time specified in the written notice of meeting. Any such
waiver of notice must be in writing, be signed by the shareholder entitled to
the notice and be delivered to the Corporation for inclusion in the appropriate
corporate records. Neither the business to be transacted at, nor the purpose of,
any shareholders' meeting need be specified in any written waiver of notice.
Attendance of a person at a shareholders' meeting shall constitute a waiver of
notice of such meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting.
Section 5. Record Date. For the purpose of determining shareholders entitled to
notice of or to vote at a shareholders' meeting, to demand a special meeting, to
act by written consent or to take any other action, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than seventy (70) days nor,
in the case of a shareholders' meeting, less than ten (10) days, prior to the
date on which the particular action requiring such determination of shareholders
is to be taken. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a shareholders' meeting, then the record
date for such shall be the close of business on the day before the first notice
is delivered to shareholders.
Section 6. Quorum. A majority of the shares entitled to vote on a matter,
represented in person or by proxy, shall constitute a quorum for action on that
matter at a meeting of shareholders. If a quorum is not present or represented
at a meeting of shareholders, the holders of a majority of the shares
represented, and who would be entitled to vote at a meeting if a quorum were
present, may adjourn the meeting from time to time. Once a quorum has been
established at a shareholders' meeting, the subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to vote at the
meeting below the number required for a quorum, shall not affect the validity of
any action taken at the meeting or any adjournment thereof.
Section 7. Voting. If a quorum is present, action on a matter, other than the
election of directors, shall be approved if the votes cast by the shareholders
represented at the meeting and entitled to vote on the subject matter favoring
the action exceeds the votes cast opposing the action, unless a greater number
of affirmative votes or voting by classes is required by Florida law or by the
articles of incorporation. Directors shall be elected in accordance with Article
III, Section 3, of these Bylaws. Each outstanding share shall be entitled to one
vote on each matter
-2-
submitted to a vote at a meeting of shareholders, unless otherwise provided
under the articles of incorporation or under Florida law.
Section 8. Proxies. A shareholder entitled to vote at any meeting of
shareholders or any adjournment thereof may vote in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for him by signing an
appointment form, either personally or by his attorney-in-fact. An appointment
of proxy is effective when received by the Secretary or other officer or agent
authorized to tabulate votes.
Section 9. Shareholder Action Without A Meeting. Any action required or
permitted to be taken at any shareholders' meeting may be taken without a
meeting, without prior notice and without a vote if the action is taken by the
holders of outstanding stock entitled to vote thereon having not less than the
minimum number of votes necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. In order to
be effective, the action must be evidenced by one or more written consents
describing the action to be taken, dated and signed by approving shareholders
having the requisite number of votes entitled to vote thereon, and delivered to
the Secretary or other officer or agent of the Corporation having custody of the
book in which proceedings of meetings of the Corporation are recorded. Within
ten (10) days after obtaining such authorization by written consent, notice must
be given to those shareholders who have not consented in writing or who are not
entitled to vote on the action, which notice shall comply with the provisions of
the Florida Business Corporation Act.
ARTICLE III
Directors
Section 1. Powers. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
under the direction of, the Board of Directors. Directors must be natural
persons who are at least 18 years of age but need not be residents of Florida or
shareholders of the Corporation.
Section 2. Compensation. Unless specifically authorized by a resolution of the
Board of Directors, the directors shall serve in such capacity without
compensation. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors. No such payments shall preclude any
director from serving in any other capacity and receiving compensation therefor.
Section 3. Number, Election & Term. The number of directors of the Corporation
shall be fixed from time to time, within any limits set forth in the Articles of
Incorporation, by resolution of the Board of Directors. Any decrease in the
number of directors shall
-3-
not shorten the term of an incumbent director. Directors shall be elected
annually, at the annual meeting of shareholders of the Corporation, 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.
Section 4. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining directors, though
less than a quorum of the Board of Directors, or by the shareholders at an
annual or special meeting called for that purpose.
Section 5. Removal of Directors. The shareholders may remove one or more
directors with or without cause. A director may be removed by the shareholders
at a meeting of shareholders, provided the notice of the meeting states that the
purpose, or one of the purposes, of the meeting is the removal of the director.
Section 6. Quorum and Voting. A majority of the number of directors fixed by or
in accordance with these Bylaws shall constitute a quorum for the transaction of
business at any meeting of directors. If a quorum is present when a vote is
taken, the affirmative vote of a majority of the directors present shall be the
act of the Board of Directors.
Section 7. Deemed Assent. 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) the director
objects at the beginning of the meeting (or promptly upon his arrival) to the
holding of the meeting or transacting specified business at the meeting, or (ii)
the director votes against or abstains from the action taken.
Section 8. Committees. The Board of Directors, by resolution adopted by a
majority of the full Board of Directors, may designate from among its members an
executive committee and one or more other committees each of which must have at
least two members and, to the extent provided in the designating resolution,
shall have and may exercise all the authority of the Board of Directors, except
such authority as may be reserved to the Board of Directors under Florida law.
Section 9. Meetings. Regular and special meetings of the Board of Directors
shall be held at the principal place of business of the Corporation or at any
other place, within or without the State of Florida, designated by the person or
persons entitled to give notice of or otherwise call the meeting. Meetings of
the Board of Directors may be called by the President or by any two directors.
Members of the Board of Directors (and any committee of the Board) may
participate in a meeting of the Board (or any committee of the Board) by means
of a conference telephone or similar communications
-4-
equipment through which all persons participating may simultaneously hear each
other during the meeting; participation by these means constitutes presence in
person at the meeting.
Section 10. Notice of Meetings. Regular meetings of the Board of Directors may
be held without notice of the date, time, place or purpose of the meeting, so
long as the date, time and place of such meetings are fixed generally by the
Board of Directors. Special meetings of the Board of Directors must be preceded
by at least two (2) days' written notice of the date, time and place of the
meeting. The notice need not describe either the business to be transacted at or
the purpose of the special meeting.
Section 11. Waiver of Notice. Notice of a meeting of the Board of Directors need
not be given to a director who signs a waiver of notice either before or after
the meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of that meeting and a waiver of any and all objections to the place of
the meeting, the time of the meeting and the manner in which it has been called
or convened, except when a director states, at the beginning of the meeting or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. The waiver of
notice need not describe either the business to be transacted at or the purpose
of the special meeting.
Section 12. Director Action Without a Meeting. Any action required or permitted
to be taken at a meeting of the Board of Directors (or a committee of the Board)
may be taken without a meeting if the action is taken by the written consent of
all members of the Board of Directors (or of the committee of the Board). The
action must be evidenced by one or more written consents describing the action
to be taken and signed by each director (or committee member), which consent(s)
shall be filed in the minutes of the proceedings of the Board. The action taken
shall be deemed effective when the last director signs the consent, unless the
consent specifies otherwise.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall consist of a
President, one or more Vice Presidents and Secretaries and a Treasurer, and if
elected by the Board of Directors by resolution, a Chairman. Such other officers
and assistant officers and agents as may be deemed necessary or desirable may be
appointed by the Board of Directors. Any two or more offices may be held by the
same person.
Section 2. Duties. The officers of the Corporation shall have the following
duties:
-5-
The President shall be the chief executive officer of the Corporation and
shall have general and active management of the business and affairs of the
Corporation subject to the direction of the Board of Directors. The President
shall see to it that all orders and resolutions of the Board are carried into
effect. In the absence of the Chairman of the Board or in the event the Board of
Directors shall not have designated a Chairman of the Board, the President shall
preside at all meetings of the Board of Directors and shareholders.
Each Vice President, if any, shall have such powers and perform such duties
as the Board of Directors shall from time to time designate. In the absence or
disability of the President, a Vice President specifically designated by the
vote of the Board of Directors shall have the powers and shall exercise the
duties of the President.
The Secretary shall have custody of and shall maintain all of the corporate
records (except the financial records), shall record the minutes of all meetings
of the shareholders and the Board of Directors, shall authenticate records of
the Corporation, shall send all notices of meetings and shall perform such other
duties as are prescribed by the Board of Directors or the President, under whose
supervision he shall be.
The Treasurer shall have custody of all corporate funds, securities and
financial records, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render an
account of all his transactions as treasurer and of the financial condition of
the Corporation at regular meetings of the Board or when the Board of Directors
so requests. The Treasurer shall also perform such other duties as are
prescribed by the Board of Directors.
Each Assistant Secretary and Assistant Treasurer, if any, shall be
appointed by the Board of Directors and shall have such powers and shall perform
such duties as shall be assigned to them by the Board of Directors.
Section 3. Resignation of Officer. An officer may resign at any time by
delivering notice to the Corporation. The resignation shall be effective upon
receipt, unless the notice specifies a later effective date. If the resignation
is effective at a later date and the Corporation accepts the future effective
date, the Board of Directors may fill the pending vacancy before the effective
date provided the Board of Directors provides that the
-6-
successor officer does not take office until the future effective date.
Section 4. Removal of Officer. The Board of Directors may remove any officer at
any time with or without cause.
Section 5. Compensation. The compensation of officers shall be fixed from time
to time at the discretion of the Board of Directors. The Board of Directors may
enter into employment agreements with any officer of the Corporation.
ARTICLE V
Stock Certificates
Section 1. Issuance. Every holder of shares in this Corporation shall be
entitled to have a certificate representing all shares to which he is entitled.
No certificate shall be issued for any share until the consideration therefor
has been fully paid.
Section 2. Form. Certificates representing shares in this Corporation shall be
signed by the President and the Secretary of the Corporation, or any other
officer so designated by the Board of Directors.
Section 3. Registered Shareholders. The Corporation shall be entitled to treat
the holder of record of shares as the holder in fact and, except as otherwise
provided by the laws of Florida, shall not be bound to recognize any equitable
or other claim to or interest in the shares.
Section 4. Transfer of Shares. Shares of the Corporation shall be transferred on
its books only after the surrender to the Corporation or the transfer agent of
the share certificates duly endorsed by the holder of record or
attorney-in-fact. If the surrendered certificates are canceled, new certificates
shall be issued to the person entitled to them, and the transaction recorded on
the books of the Corporation.
Section 5. Lost, Stolen or Destroyed Certificates. If a shareholder claims to
have lost or destroyed a certificate of shares issued by the Corporation, a new
certificate shall be issued upon delivery to the Corporation of an affidavit of
that fact by the person claiming the certificate of stock to be lost, stolen or
destroyed, and, at the discretion of the Board of Directors, upon the deposit of
a bond or other indemnity as the Board reasonably requires.
-7-
ARTICLE VI
Distributions
The Board of Directors may from time to time authorize and declare, and the
Corporation may pay, distributions on its outstanding shares in cash, property
or its own shares, unless the distribution, after giving it effect, would result
in (i) the Corporation being unable to pay its debts as they become due in the
usual course of business, or (ii) a violation of applicable law.
ARTICLE VII
Corporate Records
The Corporation shall keep as permanent records minutes of all meetings of
its shareholders and Board of Directors, a record of all actions taken by the
shareholders or Board of Directors without a meeting, and a record of all
actions taken by a committee of the Board of Directors in place of the Board of
Directors on behalf of the Corporation. The Corporation shall also maintain
accurate accounting records and a record of its shareholders in a form that
permits preparation of a list of the names and addresses of all shareholders in
alphabetical order by class of shares showing the number and series of shares
held by each.
ARTICLE VIII
Indemnification of Officers,
Directors, Employees and Agents
Section 1. Indemnification. The Corporation shall, and does hereby, indemnify
and hold harmless to the fullest extent permitted or authorized by current or
future legislation or current or future judicial or administrative decisions
(but, in the case of any such future legislation or decisions, only to the
extent that it permits the Corporation to provide broader indemnification rights
than permitted prior to such legislation or decisions), each person (including
here and hereinafter, the heirs, executors, administrators, personal
representatives or estate of such person) who was or is a party, or is
threatened to be made a party, or was or is a witness, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), from, against and in respect
of any liability (which for purposes of this Article shall include any judgment,
settlement, penalty or fine) or cost, charge or expense (including attorneys'
fees and expenses) asserted against him or incurred by him by reason of the fact
that such indemnified person (1) is or was a director or officer of the
Corporation or (2) is or was an employee or agent of the Corporation as to whom
the Corporation has agreed in writing to grant such indemnity or (3) is or was
serving, at the request of the Corporation, as a director, officer, employee or
trustee of another corporation, partnership,
-8-
joint venture, trust or other enterprise (including serving as a fiduciary of an
employee benefit plan) or is or was serving as an agent of such other
corporation, partnership, joint venture, trust or other enterprise, in each
case, as to whom the Corporation has agreed in writing to grant such indemnity.
Each director, officer, employee or agent of the Corporation as to whom
indemnification rights have been granted under this Section 1 of this Article
shall be referred to as an "Indemnified Person".
Notwithstanding the foregoing, except as specified in Section 3 of this
Article, the Corporation shall not be required to indemnify an Indemnified
Person in connection with a Proceeding (or any part thereof) initiated by such
Indemnified Person unless the authorization for such Proceeding (or any part
thereof) was not denied by the Board of Directors of the Corporation within
sixty (60) days after receipt of notice thereof from such Indemnified Person
stating his intent to initiate such Proceeding and only then upon such terms and
conditions as the Board of Directors may deem appropriate.
Section 2. Advance of Costs, Charges and Expenses. Costs, charges and expenses
(including attorneys' fees and expenses) incurred by an officer or director who
is an Indemnified Person in defending a Proceeding shall be paid by the
Corporation, to the fullest extent permitted or authorized by current or future
legislation or current or future judicial or administrative decisions (but, in
the case of any such future legislation or decisions, only to the extent that it
permits the Corporation to provide broader rights to advance costs, charges and
expenses than permitted prior to such legislation or decisions), in advance of
the final disposition of such Proceeding, upon receipt of an undertaking by or
on behalf of the Indemnified Person to repay all amounts so advanced in the
event that it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in this Article. The Corporation
may, upon approval of the Indemnified Person, authorize the Corporation's
counsel to represent such person in any Proceeding, whether or not the
Corporation is a party to such Proceeding. Such authorization may be made by the
Chairman of the Board, unless he is a party to such Proceeding, or by the Board
of Directors by majority vote, including directors who are parties to such
Proceeding.
Section 3. Procedure For Indemnification. Any indemnification or advance under
this Article shall be made promptly and in any event within forty-five (45) days
upon the written request of the Indemnified Person. The right to indemnification
or advances as granted by this Article shall be enforceable by the Indemnified
Person in any court of competent jurisdiction, if the Corporation denies such
request under this Article, in whole or in part, or if no disposition thereof is
made within forty-five (45) days. Such Indemnified Person's costs and expenses
incurred in connection with successfully establishing his right to
indemnification or advances,
-9-
in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action that the claimant has not
met the standard of conduct, if any, required by current or future legislation
or by current or future judicial or administrative decisions for indemnification
(but, in the case of any such future legislation or decisions, only to the
extent that it does not impose a more stringent standard of conduct than
permitted prior to such legislation or decision), but the burden of proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or any committee thereof, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct, if any,
nor the fact that there has been an actual determination by the Corporation
(including its Board of Directors or any committee thereof, its independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
Section 4. Rights Not Exclusive; Contract Right; Survival. The indemnification
provided by this Article shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to actions in such
person's official capacity and as to actions in another capacity while holding
such office, and shall continue as to an Indemnified Person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors, administrators, personal representatives and estate of such
person. All rights to indemnification and advances under this Article shall be
deemed to be a contract between the Corporation and each Indemnified Person who
serves or served in such capacity at any time while this Article is in effect
and, as such, are enforceable against the Corporation. Any repeal or
modification of this Article or any repeal or modification of relevant
provisions of Florida's corporation law or any other applicable laws shall not
in any way diminish these rights to indemnification of or advances to such
Indemnified Person, or the obligations of the Corporation arising hereunder, for
claims relating to matters occurring prior to such repeals or modification.
Section 5. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including serving as a
fiduciary of an employee benefit plan), with respect to any liability asserted
against him and incurred by him in any such
-10-
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article or the applicable provisions of Florida law.
Section 6. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless, and make advances
to, each Indemnified Person as to costs, charges and expenses (including
attorneys' fees), liabilities, judgments, fines and amounts paid in settlement
with respect to any Proceeding, including any action by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated and as otherwise permitted by
applicable law.
ARTICLE IX
Miscellaneous
Section 1. Corporate Seal. The corporate seal of the Corporation shall be
circular in form and shall include the name and jurisdiction of incorporation of
the Corporation.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each calendar year, unless otherwise fixed by resolution of the
Board of Directors.
Section 3. Checks. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation
shall be signed by the President, the Treasurer or such other officer(s) or
agent(s) of the Corporation as shall be determined from time to time by
resolution of the Board of Directors.
ARTICLE X. AMENDMENT
These Bylaws may be altered, amended or repealed, and new Bylaws adopted,
by the Board of Directors or by the shareholders.
I HEREBY CERTIFY that the foregoing Bylaws of Pollo Operations, Inc. are
the Bylaws duly adopted by the board of directors of the Corporation at its
organizational meeting held by written consent dated August 27, 1993.
/s/ Larry Harris
-----------------------
Larry Harris, President
-11-