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8-K - YUM! BRANDS, INC. - 8K - YUM BRANDS INC | form_8k112009.htm |
Amended
and Restated
November
20, 2009
BYLAWS
OF
YUM!
BRANDS, INC.
ARTICLE
1 – OFFICES
Section 1. Offices. The
principal office of YUM! Brands, Inc. (the “Corporation”) in the State of North
Carolina shall be in the City of Raleigh. 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 such places, 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 as
the Board of Directors shall determine each year in advance thereof, for the
purpose of electing Directors of the Corporation and the transaction of such
business as may be a proper subject for action at the meeting.
Section
3. Special Meetings.
Special Meetings of Shareholders shall be held at such places and times as
determined by the Board of Directors in their discretion as provided in the
Articles of Incorporation.
Section
4. Notice of Meetings.
At least 10 and no more than 60 days prior to any annual or special meeting of
Shareholders, the Corporation shall notify Shareholders of the date, time and
place of the meeting and, in the case of a special meeting or where otherwise
required by the Articles of Incorporation or by statute, 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 statute, the
Corporation shall be required to give notice only to Shareholders entitled to
vote at the meeting. If an annual or special Shareholders' 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. If mailed, notice shall be deemed to be
effective when deposited in the United States mail with postage thereon prepaid,
correctly addressed to the Shareholders' address shown in the Corporation's
current record of Shareholders.
Section 5. Quorum, Presiding
Officer. Except as otherwise prescribed by statute, the Articles of
Incorporation or these Bylaws, at any meeting of the Shareholders of the
Corporation, the presence in person or by proxy of the holders of record of a
majority of the issued and outstanding shares of capital stock of the
Corporation entitled to vote thereat shall constitute a quorum for the
transaction of business. In the absence of a quorum at such meeting or any
adjournment or adjournments thereof, the holders of record of a majority of such
shares so present in person or by proxy and entitled to vote thereat may adjourn
the meeting from time to time until a quorum shall be present. At any such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. Meetings
of Shareholders shall be presided over by the Chairman or Vice Chairman of the
Board, or, if neither is present, by another officer or Director who shall be
designated to serve in such event by the Board. The Secretary of the
Corporation, or an Assistant Secretary designated by the officer presiding at
the meeting, shall act as Secretary of the meeting.
Section 6. Voting. Except as
otherwise prescribed by statute, the Articles of Incorporation or these Bylaws,
at any meeting of the Shareholders of the Corporation, each Shareholder shall be
entitled to one vote in person or by proxy for each share of voting capital
stock of the Corporation registered in the name of such Shareholder on the books
of the Corporation on the date fixed pursuant to these Bylaws as the record date
for the determination of Shareholders entitled to vote at such meeting. No proxy
shall be voted after eleven (11) months from its date unless said proxy provides
for a longer period. Shares of its voting capital stock belonging to the
Corporation shall not be voted either directly or indirectly. The vote for the
election of Directors, other matters expressly prescribed by statute, and, upon
the direction of the presiding officer of the meeting, the vote on any other
question before the meeting, shall be by ballot.
Section
7. Notice of Shareholder
Proposal. No business may be transacted at an annual meeting of
Shareholders, other than business properly brought before the
meeting. To be properly brought before an annual meeting, business
must be (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
Shareholder of the Corporation (i) who is a Shareholder of record both on the
date of the giving of the notice provided for in this Section 7 and at the time
of the annual meeting, (ii) who is entitled to vote at the meeting, and (iii)
who complies with the notice procedures set forth in this Section
7. Except for proposals properly made in accordance with Rule 14a-8
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (as so amended and inclusive of such rules and
regulations, the “Exchange Act”), and included in the notice of meeting given by
or at the direction of the Board of Directors, the foregoing clause (c) shall be
the exclusive means for a Shareholder to propose business to be brought before
an annual meeting of the Shareholders. Shareholders shall not be permitted to
propose business to be brought before a special meeting of the Shareholders, and
the only matters that may be brought before a special meeting are the matters
specified in the notice of meeting given by or at the direction of the person
calling the meeting. Shareholders seeking to nominate persons for
election to the Board must comply with Section 9 and this Section 7 shall not be
applicable to nominations except as expressly provided in Section
9.
In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a Shareholder, such Shareholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation.
2
To be
timely, a Shareholder's notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting of Shareholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the Shareholder in order to be timely
must be so received not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made, whichever first
occurs.
To be in
proper written form, a Shareholder's notice to the Secretary must set
forth:
(a) as to
each matter such Shareholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting and the reasons such Shareholder proposes that such business be brought
before the annual meeting and any material interest of such Shareholder in such
business, (ii) a description of all agreements, arrangements, understandings and
relationships between or among such Shareholder and any other person or persons
or entity or entities (including their names) in connection with the proposal of
such business by such Shareholder and any material interest of such persons or
entities in such business, and (iii) a representation that such Shareholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting; and
(b) as to
each Proposing Person (as defined below), (i) the name and record address of
such Proposing Person, (ii) the class or series and number of shares of capital
stock or other securities of the Corporation which are, directly or indirectly,
owned of record or beneficially (within the meaning of Rule 13d-3 under the
Exchange Act) by such Proposing Person, (iii) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to
any shares of capital stock or other securities of the Corporation or with a
price or value derived in whole or in part from the price or value of any shares
of capital stock or other securities of the Corporation or any derivative,
synthetic, hedging, swap or similar transaction or arrangement having
characteristics of a long or short position or ownership interest in any shares
of capital stock or other securities of the Corporation, whether or not any such
instrument or right shall be subject to settlement in the underlying shares of
capital stock or other securities of the Corporation or otherwise, and any other
direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the price or value of shares of capital stock or other
securities of the Corporation (each, a “Derivative Instrument”) directly or
indirectly owned beneficially by such Proposing Person, (iv) any proxy,
agreement, arrangement, understanding or relationship pursuant to which such
Proposing Person has given or received a right to vote, directly or indirectly,
any shares of capital stock or other securities of the Corporation, (v) any
agreement, arrangement, understanding or relationship, including any repurchase
or similar so-called “stock borrowing” agreement or arrangement, which such
Proposing Person has engaged in or is a party to, directly or indirectly, the
purpose or effect of which is to mitigate loss to, reduce the economic risk of
shares of capital stock or other securities of the Corporation by, manage the
risk of share price changes for, or increase or decrease the voting power of,
such Proposing Person with respect to shares of capital stock or other
securities of the Corporation, or which provides, directly or indirectly, the
opportunity to profit from any increase or decrease in the price or value of the
shares of capital stock or other securities of the Corporation, (vi) any rights
to dividends on the shares of capital stock or other securities of the
Corporation owned beneficially by such Proposing Person that are separated or
separable from the underlying shares of capital stock or securities of the
Corporation, (vii) any performance−related fees (other than an asset−based fee)
to which such Proposing Person is or may be directly or indirectly entitled
based on any increase or decrease in the price or value of any shares of capital
stock or other securities of the Corporation or Derivative Instruments, if any
(the disclosures to be made pursuant to the foregoing clauses (i) through (vii)
are referred to as “Shareholder Information and Disclosable Interests”), and
(viii) any other information relating to such Proposing Person that would be
required to be disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies in support of the proposal
pursuant to Section 14 of the Exchange Act.
3
For the
purposes of this Section 7, the term “Proposing Person” shall mean (i) the
Shareholder providing notice of business proposed to be brought before an annual
meeting, (ii) the beneficial owner or beneficial owners of capital stock of the
Corporation, if different, on whose behalf the notice of business proposed to be
brought before the annual meeting is made, (iii) any affiliate or associate
(each within the meaning of Rule 12b-2 under the Exchange Act) of such
Shareholder or any such beneficial owner, and (iv) any other person or entity
with whom such Shareholder or any such beneficial owner (or any of their
respective affiliates and associates) is acting in concert.
A
Shareholder providing notice of business proposed to be brought before an annual
meeting shall further update and supplement such notice, if necessary, so that
the information provided or required to be provided in such notice pursuant to
this Section 7 shall be true and correct as of the record date for the meeting
and as of the date that is ten (10) business days prior to the meeting or any
adjournment or postponement thereof. Such update and supplement shall
be delivered to the Secretary not later than ten (10) business days after the
record date for the meeting (in the case of the update and supplement required
to be made as of the record date), and not later than eight (8) business days
prior to the date for the meeting or, if the meeting is adjourned or postponed,
on the first practicable date after any adjournment or postponement thereof (in
the case of the update and supplement required to be made as of ten (10)
business days prior to the meeting or any adjournment or postponement
thereof).
No
business shall be conducted at the annual meeting of Shareholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 7; provided, however, that, once business has been
properly brought before the annual meeting in accordance with such procedures,
nothing in this Section 7 shall be deemed to preclude discussion by any
Shareholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
Section
8. Postponement of Shareholders
Meeting. A scheduled annual or special meeting of Shareholders may be
postponed by the Board of Directors by public notice given at or prior to the
time of the meeting.
Section 9. Shareholder Nominations of
Directors. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation. Nominations of persons for election to the Board of Directors may
be made at any annual meeting of Shareholders, or at any special meeting of
Shareholders called for the purpose of electing directors, (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any Shareholder of the Corporation (i) who is a Shareholder of record
both on the date of the giving of the notice provided for in this Section 9 and
at the time of the meeting, (ii) who is entitled to vote at the meeting, and
(iii) who complies with the notice procedures set forth in this Section
9. The foregoing clause (b) shall be the exclusive means for a
Shareholder to make any nomination of a person or persons for election to the
Board of Directors at an annual or special meeting.
In
addition to any other applicable requirements, for a nomination to be made by a
Shareholder, such Shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation.
4
To be
timely, a Shareholder's notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation (a) in the
case of an annual meeting, not less than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of Shareholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after such anniversary date,
notice by the Shareholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs; and (b) in the case
of a special meeting of Shareholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
To be in
proper written form, a Shareholder's notice to the Secretary must set
forth:
(a)
as to each person whom the Shareholder proposes to nominate for election as a
director (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) all
information with respect to such person that would be required to be set forth
in a Shareholder’s notice pursuant to this Section 9 if such person were a
Nominating Person (as defined below), (iv) any other information relating to
such person that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act, (v) a
description of all direct and indirect compensation and other material
agreements, arrangements and understandings and any other material relationships
during the past three years, between or among any Nominating Person, on the one
hand, and such proposed nominee, his or her respective affiliates and
associates, or others acting in concert therewith, on the other hand, and (vi)
all other information that would be required to be disclosed pursuant to Item
404 of Regulation S−K promulgated by the Securities and Exchange Commission if
such Nominating Person were the “registrant” for purposes of such rule and such
proposed nominee were a director or executive officer of such registrant;
and
(b) as to
each Nominating Person, (i) the Shareholder Information and Disclosable
Interests (as defined in Section 7, except that for purposes of this Section 9,
the term “Nominating Person” shall be substituted for the term “Proposing
Person” in all places it appears in Section 7), and (ii) any other information
relating to such Nominating Person that would be required to be disclosed in a
proxy statement or other filing required to be made in connection with
solicitations of proxies for the election of directors in a contested election
pursuant to Section 14 of the Exchange Act. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
For the
purposes of this Section 9, the term “Nominating Person” shall mean (i) the
Shareholder providing notice of the nomination proposed to be made at the
meeting, (ii) the beneficial owner or beneficial owners of capital stock of the
Corporation, if different, on whose behalf the notice of the nomination proposed
to be made at the meeting is made, (iii) any affiliate or associate (each within
the meaning of Rule 12b-2 under the Exchange Act) of such Shareholder or any
such beneficial owner, and (iv) any other person or entity with whom such
Shareholder or any such beneficial owner (or any of their respective affiliates
and associates) is acting in concert.
5
A
Shareholder providing notice of a nomination proposed to be made at a meeting
shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this
Section 9 shall be true and correct as of the record date for the meeting and as
of the date that is ten (10) business days prior to the meeting or any
adjournment or postponement thereof. Such update and supplement shall be
delivered to the Secretary not later than ten (10) business days after the
record date for the meeting (in the case of the update and supplement required
to be made as of the record date), and not later than eight (8) business days
prior to the date for the meeting or, if the meeting is adjourned or postponed,
on the first practicable date after any adjournment or postponement thereof (in
the case of the update and supplement required to be made as of ten (10)
business days prior to the meeting or any adjournment or postponement
thereof).
No person
shall be eligible for election as a director of the Corporation unless nominated
in accordance with the procedures set forth in this Section 9. If the Chairman
of the meeting determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
ARTICLE
3 – BOARD OF DIRECTORS
Section
1. General
Powers. Except as otherwise expressly provided in the Articles
of Incorporation or by statute, the Board of Directors shall have the exclusive
power and authority to direct management of the business and affairs of the
Corporation and shall exercise all corporate powers, and possess all authority,
necessary or appropriate to carry out the intent of this provision, and which
are customarily exercised by the board of directors of a public
company.
Section 2. Number, Term and
Qualification. The number, term and qualification of Directors
of the Corporation shall be as provided in the Articles of
Incorporation.
Section
3. Removal. Directors
may be removed from office only for the reasons, if any, specified in the
Articles of Incorporation.
Section
4. Vacancies. Vacancies
occurring in the Board of Directors shall be filled only as provided in the
Articles of Incorporation.
Section
5. Compensation. Compensation
for the services of Directors as such shall be determined exclusively by the
Board of Directors as provided in the Articles of
Incorporation.
6
ARTICLE
4 – MEETINGS OF DIRECTORS
Section
1. Annual and Regular
Meetings. All annual and regular meetings of the Board of
Directors shall be held at such places and times as determined by the Board of
Directors in their discretion as provided in the Articles of
Incorporation.
Section
2. Special
Meetings. Special meetings of the Board of Directors shall be
held at such places and times as determined by the Board of Directors in their
discretion as provided in the Articles of Incorporation.
Section
3. Notice of
Meetings. Unless the Board of Directors by resolution
determines otherwise in accordance with authority set forth in the Articles of
Incorporation, all meetings of the Board of Directors may be held without notice
of the date, time, place or purpose of the meeting. The Secretary
shall give such notice of any meetings called by the Board by such means of
communication as may be specified by the Board.
Section
4. Quorum. A
majority of the Directors in office shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
Section
5. Manner of
Acting. A majority of Directors who are present at a meeting
at which a quorum is present will constitute the required vote to effect any
action taken by the Board of Directors.
Section
6. 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 must be evidenced by one or
more written consents signed by 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
7. Meeting by Communications
Device. The Board of Directors may permit Directors to
participate in any meeting of the Board of Directors 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.
7
ARTICLE
5 – COMMITTEES
Section
1. Election and
Powers. The Board of Directors may appoint such committees
with such members who shall have such powers and authority as may be determined
by the Board as provided in the Articles of Incorporation. To the
extent specified by the Board of Directors or in the Articles of Incorporation,
each committee shall have and may exercise the powers of the Board in the
management of the business and affairs of the Corporation, except that no
committee shall have authority to do the following:
(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 of merger not requiring Shareholder approval.
|
(g)
|
Authorize
or approve the reacquisition of shares, except according to a formula or
method prescribed by the Board of
Directors.
|
|
(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. Removal;
Vacancies. Unless the Board of Directors by resolution
determines otherwise in accordance with authority specified in the Articles of
Incorporation, any member of a committee may be removed at any time
exclusively by the Board of Directors with or without cause, and vacancies in
the membership of a committee as a result of death, resignation,
disqualification or removal shall be filled by a majority of the whole Board of
Directors. The Board may discharge any committee, either with or
without cause, at any time.
Section
3. Meetings. The
provisions of Article 4 governing meetings of the Board of Directors, action
without meeting, notice, waiver of notice and quorum and voting requirements
shall apply to the committees of the Board and its members to the extent not
otherwise prescribed by the Board in the resolution authorizing the
establishment of the committee.
Section
4. Minutes. Each
committee shall keep minutes of its proceedings and shall report thereon to the
Board of Directors at or before the next meeting of the Board.
8
ARTICLE
6 – OFFICERS
Section 1. Titles. Pursuant
to authority conferred in the Articles of Incorporation, the Board of Directors
shall have the exclusive power and authority to elect from time to time such
officers of the Corporation, including a Chairman and a President (one of whom
shall be the Chief Executive Officer), a Vice Chairman, one or more Executive
Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents, a Chief Financial Officer, a General Counsel, a Controller, a
Treasurer, a Secretary, one or more Assistant Controllers, one or more Assistant
Treasurers, and one or more Assistant Secretaries, and such other officers as
shall be deemed necessary or desirable from time to time. The
officers shall have the authority and perform the duties set forth herein or as
from time to time may be prescribed by the Board of Directors. 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.
The
officers of the Corporation may appoint one or more individuals to hold a title
which includes Assistant or Deputy together with one of the officer titles
indicated above. An individual holding such title by virtue of being
so appointed rather than by virtue of being elected to such position by the
Board of Directors shall not be an officer of the Corporation for purposes of
the Articles of Incorporation or these Bylaws.
Section
2. Election;
Removal. Pursuant to authority conferred in the Articles of
Incorporation, the officers of the Corporation shall be elected exclusively by
the Board of Directors and shall serve at the pleasure of the Board as specified
at the time of their election, until their successors are elected and qualify,
or until the earlier of their resignation or removal. Pursuant to
authority conferred in the Articles of Incorporation, any officer may be removed
by the Board at any time with or without cause.
Section
3. Compensation. Pursuant
to authority conferred in the Articles of Incorporation, the compensation of the
officers shall be fixed by the Board of Directors.
Section
4. General Powers of
Officers. Except as may be otherwise provided in these Bylaws
or in the North Carolina Business Corporation Act, the Chairman, the Vice
Chairman, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Chief Financial Officer, the General Counsel,
the Controller, the Treasurer, the Secretary, or any one of them, may (i)
execute and deliver in the name of the Corporation, in the name of any division
of the Corporation, or in both names, any agreement, contract, deed, instrument,
power of attorney or other document pertaining to the business or affairs of the
Corporation or any division of the Corporation, and (ii) delegate to any
employee or agent the power to execute and deliver any such agreement, contract,
deed, instrument, power of attorney or other document.
Section 5. Chief Executive
Officer. The Chief Executive Officer of the Corporation shall
report directly to the Board. Except in such instances as the Board
may confer powers in particular transactions upon any other officer, and subject
to the control and direction of the Board, the Chief Executive Officer shall
manage the business and affairs of the Corporation and shall communicate to the
Board and any committee thereof reports, proposals and recommendations for their
respective consideration or action. He may do and perform all acts on
behalf of the Corporation.
Section
6. Chairman. The
Chairman shall preside at meetings of the Board of Directors and the
Shareholders and shall have such other powers and perform such other duties as
the Board may prescribe or as may be prescribed in these
Bylaws.
9
Section
7. Vice
Chairman. The Vice Chairman shall have such powers and perform
such duties as the Board or the Chairman (to the extent he is authorized by the
Board of Directors to prescribe the authority and duties of other officers) may
from time to time prescribe or as may be prescribed by these
Bylaws.
Section
8. President. The
President shall have such powers and perform such duties as the Board and the
Chief Executive Officer (to the extent he is authorized by the Board of
Directors to prescribe the authority and duties of other officers) may from time
to time prescribe or as may be prescribed by these Bylaws.
Section
9. Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents. The Executive Vice
Presidents, Senior Vice Presidents and Vice Presidents shall have such powers
and perform such duties as the Board or the Chief Executive Officer (to the
extent he is authorized by the Board of Directors to prescribe the authority and
duties of other officers) may from time to time prescribe or as may be
prescribed by these Bylaws.
Section
10. Chief Financial
Officer. The Chief Financial Officer shall have powers and
perform such duties as the Board or the Chief Executive Officer (to the extent
he is authorized by the Board of Directors to prescribe the authority and duties
of other officers) may from time to time prescribe or as may be prescribed in
these Bylaws. The Chief Financial Officer shall present to the Board
such balance sheets, income statements, budgets and other financial statements
and reports as the Board or the Chief Executive Officer (to the extent he is
authorized by the Board of Directors to prescribe the authority and duties of
other officers) may require and shall perform such other duties as may be
prescribed or assigned pursuant to these Bylaws and all other acts incident to
the position of Chief Financial Officer.
Section 11. Controller. The
Controller shall be responsible for the maintenance of adequate accounting
records of all assets, liabilities, capital and transactions of the
Corporation. The Controller shall prepare such balance sheets, income
statements, budgets and other financial statements and reports as the Board or
the Chief Executive Officer or the Chief Financial Officer (to the extent they
are authorized by the Board of Directors to prescribe the authority and duties
of other officers) may require, and shall perform such other duties as may be
prescribed or assigned pursuant to these Bylaws and all other acts incident to
the position of Controller.
Section
12. Treasurer.
(a) The
Treasurer shall have the care and custody of all funds and securities of the
Corporation except as may be otherwise ordered by the Board, and shall cause
such funds (i) to be invested or reinvested from time to time for the benefit of
the Corporation as may be designated by the Board or by the Chairman, the Vice
Chairman, the President, the Chief Financial Officer or the Treasurer (to the
extent they are authorized by the Board of Directors to make such designations),
or (ii) to be deposited to the credit of the Corporation in such banks or
depositories as may be designated by the Board or by the Chairman, the
President, the Chief Financial Officer or the Treasurer (to the extent they are
authorized by the Board of Directors to make such designations), and shall cause
such securities to be placed in safekeeping in such manner as may be designated
by the Board or by the Chairman, the President, the Chief Financial Officer or
the Treasurer (to the extent they are authorized by the Board of Directors to
make such designations).
(b) The
Treasurer or such other person or persons as may be designated for such purpose
by the Board or by the Chairman, the President, the Chief Financial Officer or
the Treasurer (to the extent they are authorized by the Board of Directors to
make such designations) may endorse in the name and on behalf of the Corporation
all instruments for the payment of money, bills of lading, warehouse receipts,
insurance policies and other commercial documents requiring such
endorsement.
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(c) The
Treasurer or such other person or persons as may be designated for such purpose
by the Board or by the Chairman, the President, the Chief Financial Officer or
the Treasurer (to the extent they are authorized by the Board of Directors to
make such designations), (i) may sign all receipts and vouchers for
payments made to the Corporation; (ii) shall provide a statement of the cash
account of the Corporation to the Board as often as it shall require the same;
and (iii) shall enter regularly in the books to be kept for that purpose full
and accurate account of all moneys received and paid on account of the
Corporation and of all securities received and delivered by the
Corporation.
(d) The
Treasurer shall perform such other duties as may be prescribed or assigned
pursuant to these Bylaws and all other acts incident to the position of
Treasurer.
Section
13. Secretary. The
Secretary shall keep the minutes of all meetings of the Shareholders, the Board
and the Committees of the Board. The Secretary shall attend to the
giving and serving of all notices of the Corporation, in accordance with the
provisions of these Bylaws and as required by the laws of the State of North
Carolina. The Secretary shall cause to be prepared and maintained (i)
at the office of the Corporation a stock ledger containing the names and
addresses of all Shareholders and the number of shares held by each, and (ii)
any list of Shareholders required by law to be prepared for any meeting of
Shareholders. The Secretary shall be responsible for the custody of
all stock books and of all unissued stock certificates. The Secretary
shall be the custodian of the seal of the Corporation. The Secretary shall affix
or cause to be affixed the seal of the Corporation, and when so affixed may
attest the same and shall perform such other duties as may be prescribed or
assigned pursuant to these Bylaws and all other acts incident to the position of
Secretary.
Section
14. Voting upon
Securities. Unless otherwise ordered by the Board of
Directors, the Chairman, the President, any Executive Vice President, any Senior
Vice President or any Vice President shall have full power and authority on
behalf of the Corporation to attend, act and vote at meetings of the security
holders of any entity in which this Corporation may hold securities, and at such
meetings shall possess and may exercise any and all rights and powers incident
to the ownership of such securities 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
person or persons.
Section
15. Continuing Determination by
Board. All powers and duties of the officers shall be subject
to a continuing determination by the Board of Directors.
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ARTICLE
7 – CAPITAL STOCK
Section
1. Certificates. Unless
the Board determines otherwise, 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 Chairman, the President or any Vice President, and by the
Secretary, any Assistant Secretary, the Treasurer or any 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 facsimile
thereof.
Section
2. Transfer of
Shares. Transfers 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
holder of record or by a duly authorized agent, transferee or legal
representative. All certificates surrendered for transfer or reissue
shall be cancelled 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.
Section
4. Regulations. The
Board of Directors may make such 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 60 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 shall be 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. 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.
Section
6. Lost
Certificates. In case of loss, theft, mutilation or
destruction of any certificate evidencing shares of the capital stock of the
Corporation, another may be issued in its place upon proof of such loss, theft,
mutilation or destruction and upon the giving of an indemnity or other
undertaking to the Corporation in such form and in such sum as the Board may
direct.
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ARTICLE
8 – GENERAL PROVISIONS
Section
1. Dividends and other
Distributions. The Board of Directors may from time to time
declare and the Corporation may pay dividends or make 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 be any form approved from time to time by the
Board of Directors.
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 applicable statute, 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. Depositaries. The
Chairman, the President, the Chief Financial Officer, and the Treasurer are each
authorized to designate depositaries for the funds of the Corporation deposited
in its name or that of a division of the Corporation, or both, and the
signatories with respect thereto in each case, and from time to time, to change
such depositaries and signatories, with the same force and effect as if each
such depository and the signatories with respect thereto and changes therein had
been specifically designated or authorized by the Board; and each depositary
designated by the Board or by the Chairman, the President, the Chief Financial
Officer, or the Treasurer shall be entitled to rely upon the certificate of the
Secretary or any Assistant Secretary of the Corporation setting forth the fact
of such designation and of the appointment of the officers of the Corporation or
of other persons who are to be signatories with respect to the withdrawal of
funds deposited with such depositary, or from time to time the fact of any
change in any depositary or in the signatories with respect
thereto.
Section
5. Signatories. Unless
otherwise designated by the Board or by the Chairman, the President, the Chief
Financial Officer or the Treasurer, all notes, drafts, checks, acceptances and
orders for the payment of money shall be (a) signed by the Treasurer or any
Assistant Treasurer, and (b) countersigned by the Controller or any Assistant
Controller, or either signed or countersigned by the Chairman, the Vice
Chairman, the President, any Executive Vice President, any Senior Vice President
or any Vice President in lieu of either the officers designated in (a) or the
officers designated in (b) of this Section.
Section
6. Proxies. Unless
otherwise provided for by a resolution of the Board, the Chief Executive
Officer, or any Vice President or Secretary or Assistant Secretary designated by
the Board, may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation to cast, in the name and on behalf of the Corporation,
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation or to consent in writing, in
the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
Section
7. Fiscal
Year. The Fiscal year of the Corporation shall be fixed by the
Board of Directors.
Section
8. Amendments. These
Bylaws may be amended or repealed by the Board of Directors, including any Bylaw
adopted, amended, or repealed by the Shareholders generally. These
Bylaws may be amended or repealed by the Shareholders even though the Bylaws may
also be amended or repealed by the Board of Directors.
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