Attached files
Exhibit
3.2
bylaws
of
SMITHFIELD FOODS,
INC.
As
Amended and Restated on August 27, 1998
and
as Further Amended on September 2, 1999,
on
January 20, 2000, on May 30, 2001,
on
May 4, 2007, on December 27, 2007,
on
August 27, 2008 and on June 16, 2010
ARTICLE I
|
SHAREHOLDERS
|
1
|
Section 1.1
|
Annual
Meetings
|
1
|
Section 1.2
|
Special
Meetings
|
4
|
Section 1.3
|
Notice
of
Meetings
|
4
|
Section 1.4
|
Record
Date
|
5
|
Section 1.5
|
Organization
|
5
|
Section 1.6
|
Adjournments
|
5
|
Section 1.7
|
Waiver
of Notice; Attendance at
Meeting
|
5
|
Section 1.8
|
Quorum
and Voting Requirements
|
5
|
Section 1.9
|
Proxies
|
6
|
Section 1.10
|
Inspectors
of Elections
|
7
|
Section 1.11
|
List
of Shareholders Entitled to Vote
|
8
|
Section 1.12
|
Conduct
of Meetings
|
8
|
ARTICLE
II
|
DIRECTORS
|
9
|
Section 2.1
|
General
Powers
|
9
|
Section 2.2
|
Number
and Term
|
9
|
Section 2.3
|
Nomination;
Election
|
9
|
Section 2.4
|
Resignation;
Removal
|
13
|
Section 2.5
|
Vacancies
|
13
|
Section 2.6
|
Meetings
of the Board
|
13
|
Section 2.7
|
Notice
of Meetings
|
13
|
Section 2.8
|
Waiver
of Notice; Attendance at Meeting
|
14
|
Section 2.9
|
Quorum;
Voting
|
14
|
Section 2.10
|
Telephone
Participation
|
14
|
Section 2.11
|
Action
without Meeting
|
14
|
Section 2.12
|
Organization
|
14
|
Section 2.13
|
Regulations;
Manner of Acting
|
14
|
Section 2.14
|
Compensation
|
15
|
Section 2.15
|
Director
Emeritus
|
15
|
Section 2.16
|
Advisory
Director
|
15
|
ARTICLE
III
|
COMMITTEES
OF THE BOARD
|
15
|
Section 3.1
|
Constitution
of Committees
|
15
|
i
Section 3.2
|
Authority
of Committee
|
15
|
Section 3.3
|
Executive
Committee
|
15
|
Section 3.4
|
Audit
Committee
|
16
|
Section 3.5
|
Compensation
Committee
|
16
|
Section 3.6
|
Proceedings
|
16
|
ARTICLE
IV
|
OFFICERS
|
16
|
Section 4.1
|
Officers
Generally
|
16
|
Section 4.2
|
Election.
|
16
|
Section 4.3
|
Removal
of Officers
|
16
|
Section 4.4
|
Authority
and Duties of Officers
|
17
|
Section 4.5
|
Chairman
of the Board
|
17
|
Section 4.6
|
Chief
Executive Officer
|
17
|
Section 4.7
|
Chief
Financial Officer
|
17
|
Section 4.8
|
Secretary
|
17
|
Section 4.9
|
Voting
Securities of Other Corporations
|
18
|
Section 4.10
|
Bonds
|
18
|
ARTICLE
V
|
CAPITAL
STOCK
|
18
|
Section 5.1
|
Form
|
18
|
Section 5.2
|
Transfer
Agents and Registrars
|
18
|
Section 5.3
|
Transfers
|
18
|
Section 5.4
|
Restrictions
on Transfer
|
19
|
Section 5.5
|
Lost
Certificates
|
19
|
Section 5.6
|
Holder
of Record
|
19
|
ARTICLE
VI
|
GENERAL
PROVISIONS
|
19
|
Section 6.1
|
Fiscal
Year
|
19
|
Section 6.2
|
Seal
|
19
|
Section 6.3
|
Execution
of Instruments
|
19
|
Section 6.4
|
Construction
|
20
|
Section 6.5
|
Amendments
|
20
|
ii
ARTICLE
I
SHAREHOLDERS
SECTION 1.1 ANNUAL
MEETINGS. (a) The Corporation shall hold an annual meeting
of the shareholders for the election of directors and for the transaction of
such other business as properly may come before the meeting at such place,
either within or without the Commonwealth of Virginia, and at such date and time
as may be designated from time to time by resolution of the Board of Directors
and set forth in the notice or waiver of notice of the meeting.
(b) At
an annual meeting of the shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of the meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, (ii) otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or (iii) otherwise properly brought
before the meeting by a shareholder of the Corporation who is a shareholder of
record at the time of giving of the notice provided for in this Bylaw and at the
time of the annual meeting, who shall be entitled to vote at such meeting and
who shall have complied with the notice procedures set forth in this Bylaw;
clause (iii) shall be the exclusive means for a shareholder to submit such
business (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in
the Corporation’s notice of meeting) before an annual meeting of
shareholders.
(c) For
business to be properly brought before an annual meeting by a shareholder (other
than the nomination of a person for election as a director, which is governed by
Section 2.3 of these Bylaws) pursuant to clause (b)(iii) of this Section 1.1,
the shareholder must have given timely and proper notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder’s
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation (i) on or after May 1st and
before June 1st of
the year in which the annual meeting will be held, if the meeting date is on or
after August 1st and
on or before September 30th and
(ii) with respect to any other annual meeting of shareholders, the close of
business on the tenth day following the date of public disclosure of the date of
such meeting. In no event shall any adjournment or postponement of an
annual meeting or the announcement thereof commence a new time period (or extend
any time period) for the giving of a shareholder’s notice as described
above. To be in proper form, such shareholder’s notice shall set
forth as to each matter the shareholder proposes to bring before the annual
meeting (i) a brief description of the business to be brought before the annual
meeting and the reasons for conducting such business at such meeting, and the
text of the proposal or business (including the text of any resolutions proposed
for consideration and, in the event that such business includes a proposal to
amend the Bylaws of the Corporation, the text of the proposed amendment); (ii)
as to the shareholder giving the notice and any Shareholder Associated Person,
(A) the name and address, as they appear on the Corporation’s books, of such
shareholder and of any Shareholder Associated Person, (B) the class or series
and number of shares of the Corporation’s stock which are, directly or
indirectly, owned beneficially and of record, by such shareholder and any
Shareholder Associated Person, (C) 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 class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or
right shall be subject to settlement in the underlying class or series of
capital stock of the Corporation or otherwise (a “Derivative Instrument”)
directly or indirectly owned beneficially by such shareholder or any Shareholder
Associated Person and any other direct or indirect opportunity to profit or
share in any profit derived from any increase or decrease in the value of shares
of the Corporation, (D) any proxy, contract, arrangement, understanding, or
relationship pursuant to which such shareholder or any Shareholder Associated
Person has a right to vote any shares of any security of the Corporation, (E)
any short interest of such shareholder or any Shareholder Associated Person in
any security of the Corporation (for purposes of this Bylaw a person shall be
deemed to have short interest in a security if such person directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security), (F) any rights to dividends on
the shares of the Corporation owned beneficially by such shareholder or any
Shareholder Associated Person that are separated or separable from the
underlying shares of the Corporation, (G) any proportionate interest in shares
of the Corporation or Derivative Instruments held, directly or indirectly, by a
general or limited partnership in which such shareholder or any Shareholder
Associated Person is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner, (H) any performance-related fees (other
than an asset-based fee) that such shareholder or any Shareholder Associated
Person is entitled to based on any increase or decrease in the value of shares
of the Corporation or Derivative Instruments, if any, as of the date of such
notice, and (I) any other information relating to such shareholder and any
Shareholder Associated Person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for the proposal; including without limitation any such interests of
the type described in items (B) through (I) of this clause (c)(ii) held by
members of such shareholder’s or any Shareholder Associated Person’s immediate
family sharing the same household; (iii) if the shareholder’s notice is given
prior to the record date of the meeting, a written agreement by the shareholder
to supplement the information required to be provided under clause (c)(ii) of
this Section 1.1 by providing such information as of the record date for the
annual meeting, with such information being provided to the Secretary of the
Corporation at the principal executive office of the Corporation not later than
10 days after such record date; (iv) any material interest of the shareholder
and any Shareholder Associated Person in such business; (v) a description of all
agreements, arrangements and understandings between such shareholder or any
Shareholder Associated Person, on the one hand, and any other person or persons
(including their names), on the other hand, in connection with the proposal of
such business by the shareholder; (vi) a representation that the shareholder is
a holder of record of stock of the Corporation, is entitled to vote at such
meeting, and intends to appear in person or by proxy at the meeting to propose
such business; and (vii) a representation as to whether the shareholder or any
Shareholder Associated Person intends, or is or intends to be part of a group
that intends, (A) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporation’s
2
outstanding
capital stock required to approve or adopt the proposal and/or (B) otherwise to
solicit proxies from shareholders in support of such proposal. For
purposes of these Bylaws, “public disclosure” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
news service or in a document publicly filed or furnished by the Corporation
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(b)
of the Exchange Act, and the meaning of the term “group” shall be the meaning
ascribed to such term under Section 13(d)(3) of the Exchange Act.
(d) Notwithstanding
anything in these Bylaws to the contrary, (i) no business (other than the
nomination of a person for election as a director, which is governed by
Section 2.3 of these Bylaws) shall be conducted at any annual meeting
except in accordance with the procedures set forth in this Section 1.1 and (ii)
unless otherwise required by law, if a shareholder intending to propose business
at an annual meeting pursuant to this Section 1.1 does not provide the
information required under clause (iii) of Section 1.1(c) to the Corporation
within the time required thereunder, or the shareholder (or a qualified
representative of the shareholder) does not appear at the meeting to present the
proposed business, such business shall not be transacted, notwithstanding that
proxies in respect of such business may have been received by the
Corporation. The chair of the annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
1.1, and if the chair should so determine, he or she shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
(e) Notwithstanding
the foregoing provisions of this Section 1.1, a shareholder shall also comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Bylaw;
provided, however, that any references in these Bylaws to the Exchange Act or
the rules promulgated thereunder are not intended to and shall not limit the
requirements applicable to be considered pursuant to clause (iii) of Section
1.1(b). Nothing in this Bylaw shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act. The
provisions of this Section 1.1 shall also govern what constitutes timely notice
for purposes of Rule 14a-4(c) of the Exchange Act.
(f) The
requirements of this Section 1.1 are included to provide the Corporation notice
of a shareholder’s intention to bring business before an annual meeting and
shall in no event be construed as imposing upon any shareholder the requirement
to seek approval from the Corporation as a condition precedent to bringing any
such business before an annual meeting.
(g) For
purposes of the Bylaws, “Shareholder Associated Person” shall mean (A) any
person controlling, directly or indirectly, or acting in concert with, such
shareholder, (B) any beneficial owner of any securities of the Corporation owned
of record or beneficially by such shareholder, and (C) any person controlling,
controlled by or under common control with such Shareholder Associated
Person.
3
SECTION 1.2 SPECIAL
MEETINGS. Special meetings of shareholders for any purpose or
purposes may be called at any time (i) by the Chairman of the Board, the Chief
Executive Officer or the President, if any, pursuant to a notice delivered to
the Secretary or (ii) by the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors, and no business shall
be conducted at such meeting other than the business set forth in such notice or
resolution. Such special meetings shall be held at such places,
either within or without the Commonwealth of Virginia, and at such date and time
as shall be specified in such notice or resolution.
SECTION 1.3 NOTICE
OF MEETINGS. (a) The Corporation shall notify shareholders of the
date, time, and place of each annual and special shareholders’
meeting. Such notice shall be given no less than 10 nor more than 60
days before the meeting date except that notice of a shareholders’ meeting to
act on an amendment to the articles of incorporation, a plan of merger or share
exchange, a proposed sale, lease, exchange or other disposition of all or
substantially all of the property of the Corporation otherwise than in the usual
and regular course of business, or the dissolution of the Corporation shall be
given not less than 25 nor more than 60 days before the meeting
date. Unless the Virginia Stock Corporation Act or the Articles
of Incorporation require otherwise, the Corporation is required to give notice
only to shareholders entitled to vote at the meeting.
(b) Unless
the Virginia Stock Corporation Act or the Articles of Incorporation require
otherwise, notice of an annual meeting need not state the purpose or purposes
for which the meeting is called. Notice of a special meeting
shall state the purpose or purposes for which the meeting is
called.
(c) If
an annual or special meeting is adjourned to a different date, time, or place,
notice need not be given if the new date, time, or place is announced at the
meeting before adjournment. If a new record date for the adjourned
meeting is or shall be given under Section 1.4 hereof, however, notice of the
adjourned meeting shall be given under this Section to persons who are
shareholders as of the new record date.
(d) Notwithstanding
the foregoing, no notice of a meeting of the shareholders need be given to a
shareholder if (i) an annual report and proxy statements for two consecutive
annual meetings of shareholders or (ii) all, and at least two, checks in payment
of dividends or interest on securities during a 12-month period, have been sent
by first-class United States mail, with postage thereon prepaid, addressed to
the shareholder at his address as it appears on the share transfer books of the
Corporation, and returned undeliverable. The obligation of the
Corporation to give notice of meetings of the shareholders to any such
shareholder shall be reinstated once the Corporation has received a new address
for such shareholder for entry on its share transfer books.
(e) Notice
of a meeting of the shareholders may be communicated in person, by telephone,
telegraph, teletype, or other form of wire or wireless communication, or by mail
(including electronic mail) or private carrier. Written notice to a
shareholder is effective when mailed, if mailed postpaid and correctly addressed
to the shareholder’s address shown on the Corporation’s current record of
shareholders.
4
SECTION 1.4 RECORD
DATE. The Board of Directors (or in the case of a special meeting of
shareholders called by any of the officers specified in Section 1.2, such
officer in the notice referred to therein) shall fix, in advance, a record date
in order to make a determination of the shareholders for any
purpose. The record date may not be more than 70 days before the
meeting or action requiring a determination of shareholders. A
determination of shareholders entitled to notice of or to vote at a
shareholders’ meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date, which it shall do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting.
SECTION 1.5 ORGANIZATION. At
every meeting of shareholders, the presiding officer shall be the first listed
among the following officers who is present and able to preside at such meeting:
the Chairman of the Board, the Chief Executive Officer, the President, if any,
the Chief Operating Officer, if any, any Executive Vice President, the Chief
Financial Officer and the Secretary. In the absence of all of the
foregoing persons, the meeting shall be presided over by a chairman designated
by the Board of Directors, or in the absence of such designation, by a chairman
chosen at the meeting. The Secretary, or in his absence, an Assistant
Secretary, if any, or in his absence, an appointee of the presiding officer
shall act as secretary of the meeting.
SECTION 1.6 ADJOURNMENTS. Subject
to the provisions of Section 1.3 hereof, any meeting of shareholders, annual or
special, may adjourn from time to time to reconvene at a different date, time or
place. At the adjourned meeting the Corporation may transact any
business which might have been transacted at the original meeting.
SECTION 1.7 WAIVER
OF NOTICE; ATTENDANCE AT MEETING. A shareholder may waive any
notice required by the Virginia Stock Corporation Act, the Articles of
Incorporation, or these Bylaws before or after the date and time of the meeting
that is the subject of such notice. The waiver shall be in writing,
be signed by the shareholder entitled to the notice and be delivered to the
Secretary for inclusion in the minutes or filing with the corporate
records. A shareholder’s attendance at a meeting (i) waives objection
to lack of notice or defective notice of the meeting unless the shareholder, at
the beginning of the meeting, objects to holding the meeting or transacting
business at the meeting and (ii) waives objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice unless the shareholder objects to considering
the matter when it is presented.
SECTION 1.8 QUORUM
AND VOTING REQUIREMENTS. (a) Each outstanding share
of common stock shall be entitled to one vote on each matter submitted to a vote
at a meeting of the shareholders. Shares of other classes and series
shall be entitled to such vote as may be provided in the Articles of
Incorporation.
(b) Shares
entitled to vote as a separate voting group may take action on any matter at a
meeting only if a quorum of those shares exists with respect to that
matter. Unless otherwise required by law, a majority of the votes
entitled to be cast on a matter by a voting group constitutes a quorum of that
voting group for action on that matter. Once a share is represented
for any purpose at a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting
unless
5
a
new record date is or shall be set for that adjourned meeting. If a
quorum exists, action on a matter, other than the election of directors, by a
voting group is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless a greater number of
affirmative votes is required by law. Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present, unless a different vote is required by the
Articles of Incorporation. Less than a quorum may adjourn a
meeting.
SECTION 1.9 PROXIES. (a)
A shareholder may vote his shares in person or by proxy.
(b) Without
limiting the manner in which a shareholder may authorize another person or
persons to act for him as proxy pursuant to subsection (a) of this Section, the
following shall constitute a valid means by which a shareholder may grant such
authority:
(1) A
shareholder may execute a writing authorizing another person or persons to act
for him as proxy. Execution may be accomplished by the shareholder or
his authorized officer, director, employee or agent signing such writing or
causing his or her signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2) A
shareholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram, cablegram or other
means of electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram, or
other electronic transmission was authorized by the shareholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(3) Any
copy, facsimile, telecommunication or other reliable reproduction of the writing
or transmission created pursuant to this paragraph (b) of this Section may be
submitted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile, telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or
transmission.
(c) An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes. An appointment is
valid for 11 months unless a longer period is expressly provided in the
appointment form.
6
(d) An
appointment of a proxy is revocable by the shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest. An appointment made irrevocable under this
paragraph (d) is revoked when the interest with which it is coupled is
extinguished. A transferee for value of shares subject to
an irrevocable appointment may revoke the appointment if he did not know of its
existence when he acquired the shares and the existence of the irrevocable
appointment was not noted conspicuously on the certificate representing the
shares or on the information statement for shares without
certificates.
(e) The
death or incapacity of the shareholder appointing a proxy shall not affect the
right of the Corporation to accept the proxy’s authority unless notice of the
death or incapacity is received by the Secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his authority under the
appointment.
(f) Subject
to any legal limitations on the right of the Corporation to accept the vote or
other action of a proxy and to any express limitation on the proxy’s authority
appearing on the face of the appointment form, the Corporation is entitled to
accept the proxy’s vote or other action as that of the shareholder making the
appointment. Any fiduciary who is entitled to vote any shares may
vote such shares by proxy.
SECTION 1.10 INSPECTORS
OF ELECTIONS. (a) The Corporation shall, in advance of any meeting of
shareholders, appoint one or more inspectors to act at the meeting and to make a
written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of
shareholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his ability.
(b) The
inspectors shall: (i) ascertain the number of shares outstanding and the voting
power of each; (ii) determine the shares represented at the meeting and the
validity of proxies and ballots; (iii) count all votes and ballots; (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain
other persons or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The
date and time of the opening and the closing of the polls for each matter upon
which the shareholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless the circuit court of the city or county where the Corporation’s
principal office is located or, if none in the Commonwealth of Virginia, where
its registered office is located, upon application by a shareholder, shall
determine otherwise.
7
(d) In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
those proxies, any information provided in accordance with paragraph (b)(2) of
Section 1.9 hereof, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is authorized by the record owner to cast or
more votes than the shareholder holds of record. If the inspectors
consider other reliable information for the limited purpose permitted herein,
the inspectors at the time they make their certification pursuant to paragraph
(b)(v) of this Section 1.10 shall specify the precise information considered by
them including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information was
obtained and the basis for the inspectors’ belief that such information is
accurate and reliable.
SECTION 1.11 LIST
OF SHAREHOLDERS ENTITLED TO VOTE. (a) The officer or agent
having charge of the share transfer books of the Corporation shall make, at
least 10 days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting or any adjournment thereof, with
the address of and the number of shares held by each. The list shall be arranged
by voting group and within each voting group by class or series of
shares. For a period of 10 days prior to the meeting, such list shall
be kept on file at the registered office of the Corporation or at its principal
office or at the office of its transfer agent or registrar and shall be subject
to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting for the purpose thereof. The
original share transfer books shall be prima facie evidence as to which
shareholders are entitled to examine such list or transfer books or to vote at
any meeting of the shareholders. The right of a shareholder to
inspect such list prior to the meeting shall be subject to the conditions and
limitations set forth by law.
(b) If
the requirements of this Section have not been substantially complied with, the
meeting shall, on the demand of any shareholder in person or by proxy, be
adjourned until such requirements are met. Refusal or failure to
prepare or make available the shareholders’ list does not affect the validity of
action taken at the meeting prior to the making of any such demand, but any
action taken by the shareholders after the making of any such demand shall be
invalid and of no effect.
SECTION 1.12 CONDUCT
OF MEETINGS. The Board of Directors of the Corporation may, to the
extent not prohibited by law, adopt by resolution such rules and regulations for
the conduct of the meeting of shareholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the presiding officer of any
meeting of shareholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such officer, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the presiding officer, may to the extent
not prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the
8
meeting
and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to shareholders of record of the Corporation, their
duly authorized and constituted proxies and any such other persons as the
presiding officer shall determine; (iv) restrictions on the entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on the
time allotted to questions or comments by participants. Unless, and
to the extent, determined by the Board of Directors or the presiding officer of
the meeting, meetings of shareholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ARTICLE
II
DIRECTORS
SECTION 2.1 GENERAL
POWERS. The Corporation shall have a Board of
Directors. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation managed under the
direction of, the Board of Directors, subject to any limitation set forth in the
Articles of Incorporation.
SECTION 2.2 NUMBER
AND TERM. The Board of Directors shall consist of not less than three
nor more than 16 members, the precise number to be determined from time to time
by the affirmative vote of not less than a majority of the directors at a
meeting where a quorum is present. Except as provided otherwise in
the Articles of Incorporation, each director shall serve a term of three
years. A decrease in the number of directors shall not shorten an
incumbent director’s term. Despite the expiration of a director’s
term, he shall continue to serve until his successor is elected and qualified or
until there is a decrease in the number of directors.
SECTION 2.3 NOMINATION;
ELECTION.
(a) Only
persons who are nominated in accordance with the procedures set forth in these
Bylaws shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors may be made at a meeting of
shareholders (i) by or at the direction of the Board of Directors upon
recommendation of any nominating committee or otherwise or (ii) by any
shareholder of the Corporation who is a shareholder of record at the time of
giving of the notice provided for in this Bylaw and at the time of the annual
meeting, who shall be entitled to vote for the election of Directors at the
meeting and who complies with the notice procedures set forth in this Bylaw;
clause (ii) shall be the exclusive means for a shareholder to make nominations
of persons for election to the Board of Directors at an annual meeting of
shareholders.
To
be eligible to be a nominee for election or reelection as a director of the
Corporation, the prospective nominee (whether nominated by or at the direction
of the Board of Directors or by a shareholder), or someone acting on such
prospective nominee’s behalf, must deliver (in accordance with any applicable
time periods prescribed for delivery of notice under this Bylaw) to the
Secretary of the Corporation at the principal office of the Corporation a
written questionnaire with respect to the background and qualification of such
person and the background of any other person or entity on whose behalf the
nomination is being made (which questionnaire shall be provided by the Secretary
upon written request). The prospective nominee must also
9
provide
a written representation and agreement, in the form provided by the Secretary
upon written request, that such prospective nominee: (A) is not and
will not become a party to (1) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to how
such prospective nominee, if elected as a director of the Corporation, will act
or vote on any issue or question (a “Voting Commitment”) that has not been
disclosed to the Corporation or (2) any Voting Commitment that could limit or
interfere with such prospective nominee’s ability to comply, if elected as a
director of the Corporation, with such prospective nominee’s fiduciary duties
under applicable law; (B) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement
or indemnification in connection with service or action as a director that has
not been disclosed therein; and (C) in such person’s individual capacity and on
behalf of any person or entity on whose behalf the nomination is being made,
would be in compliance if elected as a director of the Corporation, and will
comply, with applicable law and all applicable publicly disclosed corporate
governance, conflict of interest, corporate opportunities, confidentiality and
trading policies and guidelines of the Corporation. For purposes of
this Section 2.3, a “nominee” shall include any person being considered to fill
a vacancy on the Board of Directors.
(b) Notice
in writing of a shareholder’s intent to make a nomination must be delivered or
mailed to the Secretary of the Corporation and received at the principal
executive office of the Corporation (i) on or after May 1st and
before June 1st of
the year in which the meeting will be held, if the meeting is an annual meeting
and the meeting date is on or after August 1st and
on or before September 30th and
(ii) with respect to any other annual meeting or a special meeting for which the
Board of Directors gives notice that directors are to be elected, the close of
business on the tenth day following the date of public disclosure of the date of
such meeting. Notwithstanding the preceding sentence, in the event
that the number of directors to be elected to the Board of Directors of the
Corporation at an annual meeting is increased and there is no public disclosure
naming all the persons to be nominated by or at the direction of the Board of
Directors for the additional directorships by May 15th of
the year in which the meeting will be held, a shareholder’s notice required by
this Bylaw shall also be considered timely, but only with respect to nominees
for such additional directorships, if it shall be delivered or mailed to the
Secretary and received at the principal executive office of the Corporation not
later than the close of business on the 10th day
following the day on which such public disclosure is first made by the
Corporation. In no event shall any adjournment or postponement of an
annual or special meeting or the announcement thereof commence a new time period
(or extend any time period) for the giving of a shareholder’s notice as
described above. In the case of a special meeting of shareholders at
which the Board of Directors gives notice that directors are to be elected,
shareholders may nominate a person or persons (as the case may be) for election
only to such position(s) as are specified in the Corporation’s notice of meeting
as being up for election at such meeting. A shareholder’s notice
required by this Bylaw shall set forth (i) as to each person whom the
shareholder proposes to nominate for election or reelection as a director, (A)
all information relating to such person that would be required to be disclosed
in solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to and
10
in
accordance with Regulation 14A under the Exchange Act (including such person’s
written consent to being named as a nominee and to serving as a director if
elected) and (B) a description of all direct and indirect compensation and other
material monetary agreements, arrangements and understandings during the past
three years, and any other material relationships, between or among such
shareholder and any Shareholder Associated Person, if any, on the one hand, and
each proposed nominee, and his or her respective affiliates and associates, or
others acting in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed pursuant to
Rule 404 promulgated under Regulation S-K if the shareholder or any Shareholder
Associated Person were the “registrant” for purposes of such rule and the
nominee were a director or executive officer of such registrant; (ii) as to the
shareholder giving the notice and any Shareholder Associated Person, (A) the
name and address, as they appear on the Corporation’s books, of such shareholder
and of any Shareholder Associated Person, (B) the class or series and number of
shares of the Corporation’s stock which are, directly or indirectly, owned
beneficially and of record, by such shareholder and any Shareholder Associated
Person, (C) any Derivative Instrument directly or indirectly owned beneficially
by such shareholder or any Shareholder Associated Person and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation, (D) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such shareholder
or any Shareholder Associated Person has a right to vote any shares of any
security of the Corporation, (E) any short interest of such shareholder or any
Shareholder Associated Person in any security of the Corporation (for purposes
of this Bylaw a person shall be deemed to have a short interest in a security if
such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share
in any profit derived from any decrease in the value of the subject security),
(F) any rights to dividends on the shares of the Corporation owned beneficially
by such shareholder or any Shareholder Associated Person that are separated or
separable from the underlying shares of the Corporation, (G) any proportionate
interest in shares of the Corporation or Derivative Instruments held, directly
or indirectly, by a general or limited partnership in which such shareholder or
any Shareholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (H) any
performance-related fees (other than an asset-based fee) that such shareholder
or any Shareholder Associated Person is entitled to based on any increase or
decrease in the value of shares of the Corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such
interests, and (I) any other information relating to such shareholder and any
Shareholder Associated Person that would be required to be disclosed in a proxy
statement or other filings 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 and the rules and regulations promulgated
thereunder, including without limitation any such interests of the type
described in items (B) through (I) of this clause (b)(ii) held by members of
such shareholder’s or any Shareholder Associated Person’s immediate family
sharing the same household; (iii) if the shareholder’s notice is given prior to
the record date of the meeting, a written agreement by the shareholder to
supplement the information required to be provided under clause (ii) of this
Section 2.3(b) by providing such information as of
11
the
record date for the meeting, with such information being provided to the
Secretary of the Corporation at the principal executive office of the
Corporation not later than 10 days after such record date; (iv) a representation
that the shareholder is a holder of record of stock of the Corporation, is
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to propose such nomination; and (v) a representation as to whether
the shareholder or any Shareholder Associated Person intends, or is or intends
to be part of a group that intends, (A) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation’s outstanding
capital stock required to elect the nominee and/or (B) otherwise to solicit
proxies from shareholders in support of such nomination. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary that
information required to be set forth in a shareholder’s notice of nomination
which pertains to the nominee. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the Corporation to determine the eligibility of such proposed nominee to
serve as an independent director of the Corporation or that could be material to
a reasonable shareholder’s understanding of the independence, or lack thereof,
of such nominee.
(c) Except
as provided in Section 2.5 hereof or in the Articles of Incorporation, each
director shall be elected by a majority of the votes cast with respect to that
director’s election at any meeting of shareholders for the election of directors
at which a quorum is present; provided, however, that if the number of
persons properly nominated to serve as directors exceeds the number of directors
to be elected, the directors shall be elected by a plurality of the votes cast
by the shares entitled to vote in the election of directors. For
purposes of this Section, a majority of the votes cast means that the number of
shares voted “for” a director exceeds the number of shares voted “against” that
director (with “abstentions” and “broker non-votes” not counted as votes cast
either “for” or “against” any director’s election).
If
a nominee for director is not elected and the nominee is an incumbent director,
then that director shall promptly tender his or her resignation to the
Board of Directors, subject to acceptance by the Board of
Directors. The Nominating and Governance Committee will make a
recommendation to the Board of Directors as to whether to accept or reject the
tendered resignation, or whether other action should be taken. The
Board of Directors will act on the tendered resignation, taking into account the
Nominating and Governance Committee’s recommendation, and publicly disclose (by
a press release, a filing with the Securities and Exchange Commission or other
broadly disseminated means of communication) its decision regarding the tendered
resignation and the rationale behind the decision within 90 days from the date
of certification of the election results. The Nominating and
Governance Committee in making its recommendation and the Board of Directors in
making its decision may each consider any factors that they consider appropriate
and relevant. The director who tenders his or her resignation will
not participate in the recommendation of the Nominating and Governance Committee
or the decision of the Board of Directors with respect to his or her
resignation.
(d) Notwithstanding
the foregoing provisions of this Section 2.3, a shareholder shall also comply
with all applicable requirements of the Exchange Act and
12
the
rules and regulations thereunder with respect to the matters set forth in this
Bylaw; provided, however, that any references in these Bylaws to the Exchange
Act or the rules promulgated thereunder are not intended to and shall not limit
the requirements applicable to nominations to be considered pursuant to clause
(ii) of Section 2.3(a). Nothing in this Section 2.3 shall be deemed
to affect any rights of the holders of any series of preferred stock of the
Corporation to elect directors pursuant to any applicable provisions of the
Articles of Incorporation.
SECTION 2.4 RESIGNATION;
REMOVAL. A director may resign at any time upon delivering a written
notice of resignation, signed by such director, to the Board of Directors, the
Chairman of the Board, the President, if any, or the
Secretary. Unless a later date is specified therein, such resignation
shall take effect upon delivery. A director may be removed only to
the extent permitted under the Articles of Incorporation and only at a meeting
of shareholders called for the purpose of removing him and the meeting notice
must state that the purpose, or one of the purposes, of the meeting is removal
of the director. If a director is elected by a voting group, only the
shareholders of that voting group may vote to remove him.
SECTION 2.5 VACANCIES. A
vacancy in the Board of Directors, including a vacancy resulting from an
increase in the number of directors or the resignation of a director, may be
filled only in the manner provided in the Articles of
Incorporation. In the case of a resignation that will become
effective at a specified later date, such vacancy may be filled before the
vacancy occurs but the new directors may not take office until the vacancy
occurs.
SECTION 2.6 MEETINGS
OF THE BOARD. (a) The annual meeting of the Board of Directors for
the purpose of electing officers and for the transaction of such other business
as may properly come before the meeting shall be held as soon as possible
following the annual meeting of shareholders. The Board of Directors
may also adopt a schedule of additional meetings which, together with the annual
meeting referred to in the preceding sentence, shall be considered the regular
meetings of the Board of Directors. Regular meetings may be held at such places
within or without the Commonwealth of Virginia and at such times as the Chairman
of the Board or the Board of Directors shall designate from time to
time. If no place is designated, regular meetings shall be held at
the principal executive offices of the Corporation.
(b) Special
meetings of the Board of Directors may be called by the Chairman of the Board,
the Chief Executive Officer, the President, if any, or not less than one-third
of the directors then in office and shall be held at such times and at such
places, within or without the Commonwealth of Virginia, as the person or persons
calling the meetings shall designate. If no such place is
designated in the notice of the meeting, it shall be held at the principal
executive offices of the Corporation.
SECTION 2.7 NOTICE
OF MEETINGS. (a) No notice need be given of regular meetings of the
Board of Directors.
(b) Notices
of special meetings of the Board of Directors shall be given to each director in
person or delivered to his residence or business address (or such other place as
he may have directed in writing) not less than 24 hours before the meeting by
mail, messenger, telecopier, telegraph or other means of written communication
or by
13
telephoning
such notice to him. Any such notice shall set forth the time and
place of the meeting and state the purpose for which it is called.
SECTION 2.8 WAIVER
OF NOTICE; ATTENDANCE AT MEETING. (a) A director may waive any notice
required by law, the Articles of Incorporation or these Bylaws before or after
the date and time stated in the notice and such waiver shall be equivalent to
the giving of such notice. Except as provided in paragraph (b) of this Section,
the waiver shall be in writing, signed by the director entitled to the notice
and filed with the minutes or corporate records.
(b) A
director’s attendance at or participation in a meeting waives any required
notice to him of the meeting unless the director, at the beginning of the
meeting or promptly upon his arrival, objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
SECTION 2.9 QUORUM;
VOTING. A majority of the number of directors determined by the Board
of Directors pursuant to these Bylaws shall constitute a quorum for the
transaction of business at a meeting of the Board of Directors. If a
quorum is present when a vote is taken, the affirmative vote of a majority of
the directors present is the act of the Board of Directors. A
director who is present at a meeting of the Board of Directors or a committee of
the Board of Directors when corporate action is taken is deemed to have assented
to the action taken unless (i) he objects, at the beginning of the meeting or
promptly upon his arrival, to holding it or transacting specified business at
the meeting or (ii) he votes against or abstains from the action
taken.
SECTION 2.10 TELEPHONE
PARTICIPATION. The Board of Directors may permit any or all directors
to participate in a regular or special meeting by, or conduct the meeting
through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the
meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
SECTION 2.11 ACTION
WITHOUT MEETING. Action required or permitted to be taken at a
meeting of the Board of Directors may be taken without a meeting if the action
is taken by all members of the Board. The action shall be evidenced
by one or more written consents stating the action taken, signed by each
director either before or after the action is taken and included in the minutes
or filed with the corporate records. Action taken under this section
shall be effective when the last director signs the consent unless the consent
specifies a different effective date in which event the action taken is
effective as of the date specified therein provided the consent states the date
of execution by each director.
SECTION 2.12 ORGANIZATION. Meetings
of the Board of Directors shall be presided over by the Chairman of the Board,
or in his absence by a chairman chosen at the meeting. The Secretary,
if present, shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
SECTION 2.13 REGULATIONS;
MANNER OF ACTING. To the extent consistent with applicable law, the
Articles of Incorporation, and these Bylaws, the Board of Directors may adopt
such rules and regulations for the conduct of meetings of the Board of Directors
and for
14
the
management of the property, affairs and business of the Corporation as the Board
of Directors may deem appropriate.
SECTION 2.14 COMPENSATION. The
Board of Directors may fix the compensation of directors and may provide for the
payment of all expenses incurred by them in attending meetings of the Board of
Directors or any Committee thereof.
SECTION 2.15 DIRECTOR
EMERITUS. The Board of Directors may appoint to the position of
Director Emeritus any retiring director who has served not less than five years
as a director of the Corporation. Such person so appointed shall have
the title of “Director Emeritus” and shall be entitled to receive notice of, and
to attend all meetings of the Board, but shall not in fact be a director, shall
not be entitled to vote, and shall not be counted in determining a quorum of the
Board and shall not have any of the duties or liabilities of a director under
law.
SECTION 2.16 ADVISORY
DIRECTOR. The Board of Directors may appoint any person as an
advisory director of the Corporation. Each such person so appointed
shall not in fact be a director, shall not be entitled to receive notice of,
attend, or vote at any meetings of the Board, shall not be counted in
determining a quorum of the Board and shall not have any of the duties or
liabilities of a director under law or these Bylaws. An advisory
director may attend Board meetings at the invitation of the Board.
ARTICLE
III
COMMITTEES
OF THE BOARD
SECTION 3.1 CONSTITUTION
OF COMMITTEES. The Board of Directors may, by resolution adopted by a
vote of a majority of the directors then in office, create one or more
committees and appoint members of the Board of Directors to serve on
them. Except as otherwise provided in these Bylaws, each such
committee shall consist of two or more members who serve at the pleasure of the
Board of Directors.
SECTION 3.2 AUTHORITY
OF COMMITTEE. To the extent specified by the Board of Directors, each
committee may exercise the authority of the Board of Directors, except that a
committee may not (i) approve or recommend to the shareholders action that is
required by law to be approved by shareholders, (ii) fill vacancies on the Board
of Directors or on any of its committees, (iii) amend the Articles of
Incorporation, (iv) adopt, amend, or repeal these Bylaws, (v) approve a
plan of merger not requiring shareholder approval, (vi) authorize or approve a
distribution, except according to a general formula or method prescribed by the
Board of Directors or (vii) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative rights,
preferences, and limitations of a class or series of shares; provided, however,
that the Board of Directors may authorize a committee, or a senior executive
officer of the Corporation, to do so within limits specifically prescribed by
the Board of Directors.
SECTION 3.3 EXECUTIVE
COMMITTEE. The Board of Directors shall appoint each year an
Executive Committee consisting of not less than two directors. During
the intervals between the meetings of the Board of Directors, the Executive
Committee shall have and may exercise, to the fullest extent permitted by law,
all of the powers and authority of the Board of
15
Directors
in the management of the property, affairs and business of the Corporation,
except to the extent such powers or authority are limited by the provisions of
Section 3.2 hereof.
SECTION 3.4 AUDIT
COMMITTEE. The Board of Directors shall appoint each year an Audit
Committee in accordance with the terms of an Audit Committee Charter which the
Board of Directors shall adopt and shall amend as the Board of Directors shall
determine from time to time.
SECTION 3.5 COMPENSATION
COMMITTEE. The Board of Directors shall appoint each year a
Compensation Committee in accordance with the terms of a Compensation Committee
Charter which the Board of Directors shall adopt and shall amend as the Board of
Directors shall determine from time to time.
SECTION 3.6 PROCEEDINGS. The
provisions of these Bylaws which govern meetings, action without meetings,
notice and waiver of notice, and quorum requirements of the Board of Directors
shall apply to committees of directors and their members as
well. Subject to applicable law, the Articles of Incorporation and
these Bylaws, each such committee may fix its own rules of procedure and may
meet at such place within or without the Commonwealth of Virginia, at such time
and upon such notice, if any, as it shall determine from time to
time. Each such committee shall keep minutes of its proceedings and
shall, if requested, report such proceedings to the Board of Directors at the
meeting of the Board of Directors next following any such
proceedings.
ARTICLE
IV
OFFICERS
SECTION 4.1 OFFICERS
GENERALLY. The officers of the Corporation shall be a Chairman of the
Board, a Chief Executive Officer, a Chief Financial Officer and a
Secretary. The Board of Directors at its discretion may also elect a
President, a Chief Operating Officer, a Treasurer, a Controller, one or more
Executive Vice Presidents, one or more Vice Presidents with such further title
or titles as it desires to confer, and one or more Assistant Secretaries,
Assistant Treasurers, Assistant Controllers, and other assistant officers in
such numbers as the Board of Directors may determine. Any number of
offices may be held by the same person. Except for the Chairman of
the Board, no officer need be a director of the Corporation.
SECTION 4.2 ELECTION.
Officers shall be elected by the Board of Directors. The Chief
Executive Officer may from time to time appoint other
officers. Officers elected by the Board of Directors shall hold
office, unless sooner removed, until the next annual meeting of the Board of
Directors or until their successors are elected. Officers appointed by the Chief
Executive Officer shall hold office, unless sooner removed, until their
successors are appointed. The action of the Chief Executive Officer in
appointing officers shall be reported to the next regular meeting of the Board
of Directors after it is taken. Any officer may resign at any time upon written
notice to the Board of Directors or the officer appointing him and such
resignation shall be effective when notice is delivered unless the notice
specifies a later effective date.
SECTION 4.3 REMOVAL
OF OFFICERS. The Board of Directors may remove any officer at any
time, with or without cause. The Chief Executive Officer may remove
any officer
16
he
appoints at any time, with or without cause. Such action shall be
reported to the next regular meeting of the Board of Directors after it is
taken. Any removal of an officer shall be without prejudice to the right to the
recovery of damages for breach of the contract rights, if any, of the person
removed. Election or appointment of an officer shall not of itself
create contract rights.
SECTION 4.4 AUTHORITY
AND DUTIES OF OFFICERS. The officers of the Corporation shall have
such authority and shall exercise such powers and perform such duties as are
customary for their respective offices and as may be specified in these Bylaws
or as may be determined from time to time by the Board of Directors, except that
in any event each officer shall exercise such powers and perform such duties as
may be required by law.
SECTION 4.5 CHAIRMAN
OF THE BOARD. The Chairman of the Board shall preside at all meetings
of the shareholders and directors at which he is present and shall have general
control and supervision of the policies and operations of the Corporation,
except as may be limited by the Board of Directors, the Articles of
Incorporation or these Bylaws. He shall have the authority to remove
or suspend any employee or agent of the Corporation elected or appointed by the
Board of Directors. The Chairman of the Board shall perform such
other duties and have such other powers as the Board of Directors may from time
to time prescribe.
SECTION 4.6 CHIEF
EXECUTIVE OFFICER. The Chief Executive Officer shall see that all
orders and resolutions of the Board of Directors are carried into
effect. He shall manage and administer the Corporation’s business and
affairs and shall also perform all duties and exercise all powers usually
pertaining to the office of a chief executive officer of a corporation, except
as may be limited by the Board of Directors, the Articles of Incorporation or
these Bylaws. The Chief Executive Officer may sign, execute and deliver in the
name of the Corporation powers of attorney, contracts, bonds, notes, corporate
obligations and other documents. He shall have the authority to cause
the employment or appointment of such employees and agents of the Corporation
(other than those elected by the Board of Directors) as the conduct of the
business of the Corporation may require, to fix their compensation, and to
remove or suspend any employee or agent appointed by the Chief Executive
Officer.
SECTION 4.7 CHIEF
FINANCIAL OFFICER. The Chief Financial Officer shall have charge of
and be responsible for all securities, funds, receipts and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of the
Corporation, all monies or valuable effects in such banks, trust companies or
other depositories as shall, from time to time, be selected by or under
authority granted by the Board of Directors; he shall be custodian of the
financial records of the Corporation; he shall keep or cause to be kept full and
accurate records of all receipts and disbursements of the Corporation and shall
render to the Chairman of the Board, the Chief Executive Officer, the President,
if any, and the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and he shall perform such other duties
as may be assigned to him by the Chief Executive Officer or the Board of
Directors.
SECTION 4.8 SECRETARY. The
Secretary, subject to the direction of the Chief Executive Officer, shall have
general responsibility for and custody of the minutes of all meetings of the
shareholders and of the Board of Directors and of all committees appointed
by
17
the
Board. He shall have general responsibility for and custody of the
corporate seal, the transfer books, and other records and documents of the
corporation not pertaining to the performance of duties vested in other
officers. He shall cause notice to be given of meetings of
shareholders, of the Board of Directors, and of all committees appointed by the
Board of Directors. He shall perform such other duties as from time
to time may be assigned to him by the Chairman of the Board or the Board of
Directors or as may be required by law.
SECTION 4.9 VOTING
SECURITIES OF OTHER CORPORATIONS. Unless otherwise provided by the
Board of Directors, any one of the Chairman of the Board, the Chief Executive
Officer, the President, the Secretary or any Assistant Secretary shall have the
power (and may appoint from time to time any other person) to act for
and vote on behalf of the Corporation at all meetings of the shareholders of any
corporation in which the Corporation holds stock or in connection with the
consent of the shareholders in lieu of any such meeting.
SECTION 4.10 BONDS. The
Board of Directors may require that any or all officers, employees and agents of
the Corporation give bond to the Corporation, with sufficient sureties,
conditioned upon the faithful performance of the duties of their respective
offices or positions.
ARTICLE
V
CAPITAL
STOCK
SECTION 5.1 FORM. Shares
of the Corporation shall, when fully paid, be evidenced by certificates
containing such information as is required by law and approved by the Board of
Directors. Alternatively, the Board of Directors may authorize the
issuance of some or all shares without certificates. In such event,
within a reasonable time after issuance, the Corporation shall mail to the
shareholder a written confirmation of its records with respect to such shares
containing information required by law.
When
issued, certificates shall be signed by the Chairman of the Board, the Chief
Executive Officer, the President or a Vice President and by the Secretary or an
Assistant Secretary of the Corporation. Any or all of the signatures
on a certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such individual were such officer, transfer agent or
registrar at the date of issue.
SECTION 5.2 TRANSFER
AGENTS AND REGISTRARS. The Board of Directors shall have power to
appoint one or more transfer agents or registrars for one or more classes of the
stock of the Corporation, and may require that stock certificates be
countersigned and registered by one or more of such transfer agents or
registrars.
SECTION 5.3 TRANSFERS. Upon
surrender to the Corporation or to the transfer agent or registrar of a
certificate for shares endorsed or accompanied by a written assignment signed by
the holder of record or by such holder’s duly authorized attorney-in-fact, it
shall be the duty of the Corporation or its duly appointed transfer agent or
registrar, to issue a new certificate to the person entitled thereto, to cancel
the old certificate, and to record the transaction on the books of the
Corporation. Where shares have been issued without certificates,
shares may be
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transferred
by a written assignment to sell, assign and transfer the same on the books of
the Corporation, signed by the holder of record or by such holder’s duly
authorized attorney-in-fact, and shall be transferable on the books of the
Corporation upon delivery of such assignment to the Corporation.
SECTION 5.4 RESTRICTIONS
ON TRANSFER. A lawful restriction on the transfer or registration of
transfer of shares is valid and enforceable against the holder or a transferee
of the holder if the restriction complies with the requirements of law and its
existence is noted conspicuously on the front or back of any certificate
representing the shares or has been otherwise communicated in accordance with
the requirements of law. Unless so noted or communicated, a
restriction is not enforceable against a person without knowledge of the
restriction.
SECTION 5.5 LOST
CERTIFICATES. The Corporation may issue a new stock certificate or a
written confirmation of its records with respect to shares in the place of any
certificate theretofore issued by it which is alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner’s legal representative, to give the
Corporation a bond, with or without surety, (or such other agreement,
undertaking or security as the Corporation shall determine is appropriate)
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or
confirmation.
SECTION 5.6 HOLDER
OF RECORD. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the owner thereof in fact, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise specifically provided by
law.
ARTICLE
VI
GENERAL
PROVISIONS
SECTION 6.1 FISCAL
YEAR. The Board of Directors shall have power to fix and to change
the fiscal year of the Corporation. Unless otherwise determined by
the Board, the Corporation’s fiscal year shall be the 52 or 53 week period which
ends on the Sunday nearest to April 30.
SECTION 6.2 SEAL. The
corporate seal shall have the name of the Corporation and the word “seal”
inscribed thereon, and may be engraved, printed, impressed or drawn in facsimile
upon any document where appropriate.
SECTION 6.3 EXECUTION
OF INSTRUMENTS. The Chairman of the Board and the Chief Executive
Officer each may enter into any contract or execute and deliver any instrument
in the name and on behalf of the Corporation. The Board of Directors,
the Chairman of the Board or the Chief Executive Officer may authorize any other
officer, employee or agent to enter into any contract or execute and deliver any
instrument in the name and on behalf of the
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Corporation.
Any such authorization may be general or limited to specific contracts or
instruments.
SECTION 6.4 CONSTRUCTION. In
the event of any conflict between the provisions of these Bylaws as in effect
from time to time and the provisions of the Articles of Incorporation of the
Corporation as in effect from time to time, the provisions of the Articles of
Incorporation shall be controlling. As used in these Bylaws,
the term “Articles of Incorporation” shall mean the articles of incorporation of
the Corporation filed with the State Corporation Commission pursuant to
§13.1-618 of the Virginia Stock Corporation Act, as amended from time to
time. As used herein, unless the context otherwise requires: (i) the
terms defined herein shall have the meaning set forth herein for all purposes;
(ii) the terms “include,” “includes,” and “including” are deemed to be followed
by “without limitation” whether or not they are in fact followed by such words
or words of like import; (iii) “writing,” “written” and comparable terms refer
to printing, typing, handwriting and other means of reproducing words in a
visible form; (iv) “hereof,” “herein,” “hereunder” and comparable terms refer to
the entirety of these Bylaws and not to any particular article, section or other
subdivision hereof; and (v) references to any gender include references to all
genders, and references to the singular include references to the plural and
vice versa.
SECTION 6.5 AMENDMENTS. These
Bylaws may be amended or repealed, and new Bylaws may be made, at any regular or
special meeting of the Board of Directors. Bylaws made by the Board
of Directors may be repealed or changed and new Bylaws may be made by the
shareholders, and the shareholders may prescribe that any Bylaw made by them
shall not be altered, amended or repealed by the Board of
Directors.
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