Attached files
file | filename |
---|---|
8-K - FORM 8-K - PEPSICO INC | y91180e8vk.htm |
EX-3.1 - EX-3.1 - PEPSICO INC | y91180exv3w1.htm |
EX-99.1 - EX-99.1 - PEPSICO INC | y91180exv99w1.htm |
EXHIBIT 3.2
PepsiCo, Inc.
By-Laws
As amended effective May 9, 2011
Article I
Offices
Section 1.1 Principal Office. The principal office of PepsiCo, Inc. (hereinafter called the
Corporation) may be located at such place as the Board of Directors of the Corporation
(hereinafter called the Board) may fix from time to time.
Section 1.2 Registered Office. The registered office of the Corporation required by law to be
maintained in the State of North Carolina may be, but need not be, identical with the principal
office.
Section 1.3 Other Offices. The Corporation may also have an office or offices at such other place
or places, either within or without the State of North Carolina, as the Board may from time to time
by resolution determine or as may be appropriate to the business of the Corporation.
Article II
Meetings of Shareholders
Section 2.1 Place of Meetings. All meetings of the shareholders of the Corporation shall be held at
the principal office of the Corporation in the State of North Carolina, or at such other place
within or without the State of North Carolina as may from time to time be fixed by the Chairman of
the Board or the Board and designated in the notice of the meeting.
Section 2.2 Annual Meetings. The annual meeting of the shareholders of the Corporation for the
election of directors and for the transaction of such other business as may properly come before
the meeting shall be held on the first Wednesday of May in each year (or, if that day shall be a
legal holiday under the laws of the State where such meeting is to be held, then on the next
succeeding business day). No business shall be transacted at an annual meeting of shareholders,
except such business as shall be (a) specified in the notice of meeting given as provided in
Section 2.5, (b) otherwise brought before the meeting by or at the direction of the Board, or (c)
otherwise brought before the meeting by a shareholder of record entitled to vote at the meeting, in
compliance with the procedure set forth in this Section 2.2. For nominations or other business to
be brought before an annual meeting by a shareholder pursuant to (c) above, the shareholder must
have given written notice thereof to the Secretary of the Corporation. To be timely, a
shareholders notice must be delivered to, or mailed to and received at, the principal office of
the Corporation no less than ninety (90) nor more than one hundred twenty (120) days prior to the
first anniversary of the preceding years annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than
sixty (60) days from such anniversary date, notice by the shareholder must be so delivered not
earlier than the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is first made. Such
shareholder notice shall set forth: (A) as to each person proposed to be nominated for election or
reelection as a director by the shareholder(s), all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the Exchange Act), including such persons written consent to
being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to
any other business proposed to be brought before the meeting by the shareholder(s), a brief
description of such business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend these By-Laws, the language of the
proposed amendment), the reasons for conducting such business at the meeting and any material
interest in such business of such shareholder(s) and the beneficial owner(s), if any, on whose
behalf the proposal is made; and (C) as to the shareholder(s) giving the notice and the beneficial
owner(s), if any, on whose behalf the proposed nomination or proposal of other business is made:
(i) the name and address of such shareholder(s) and any such beneficial owner(s), as it appears in
the records of the Corporation, (ii) the number of shares of the Corporations common stock that
are held of record or are beneficially owned by such shareholder(s) and by any such beneficial
owner(s), (iii) a description of any agreement, arrangement or understanding between or among such
shareholder(s) and any such beneficial owner(s), any of their respective affiliates or associates,
and any other person or persons (including their names) in connection with the proposed nomination
or proposal of other business, (iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options, warrants, convertible
securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned
shares) that has been entered into by or on behalf of, or any other agreement, arrangement or
understanding that has been made, the effect or intent of which is to mitigate loss to, manage risk
or benefit of share price changes for, or increase or decrease the voting power of, such
shareholder or any such beneficial owner or any such nominee with respect to the corporations
securities, (v) a representation that each such shareholder is a holder of record of common stock
of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to bring such proposed nomination or proposal of other business before the meeting, and
(vi) a representation as to whether such shareholder(s) or any such beneficial owner(s) intends or
is part of a group that intends to (x) deliver a proxy statement and/or form of proxy to holders of
at least the percentage of the voting power of the Corporations outstanding common stock required
to approve or adopt the proposal or to elect each such nominee and/or (y) otherwise to solicit
proxies from shareholders in support of such proposed nomination or proposal of other business. If
requested by the Corporation, the information required under clauses (C)(ii) and (C)(iii) of this
Section 2.2 shall be supplemented by such shareholder(s) and any such beneficial owner(s) not later
than 10 days after the record date for the meeting to disclose such information as of the record
date.
Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the provisions set forth in this Section 2.2. If the
chairman of the annual meeting determines that any business was not properly brought before the
meeting in accordance with provisions prescribed by these By-Laws, he shall so declare at the
meeting, and to the extent permitted by law any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.2
regarding advance notice of shareholder proposals, a shareholder shall also comply with all
applicable requirements of state law and of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.2. Nothing in this Section 2.2
shall be deemed to affect any rights of shareholders to request inclusion of proposals pursuant to
Rule 14a-8 under the Exchange Act, or nominations for directors pursuant to Rule 14a-11 under the
Exchange Act, in the Corporations proxy statement for the annual meeting of shareholders.
Section 2.3 Substitute Annual Meeting. If the annual meeting shall not be held on the day
designated by these By-Laws, a substitute annual meeting may be called in accordance with the
provisions of Section 2.4. A meeting so called shall be designated and treated for all purposes as
the annual meeting.
Section 2.4 Special Meetings. A special meeting of the shareholders of the Corporation may be
called at any time by the Chairman of the Board or by resolution of the Board, and shall be called
by the Secretary upon the valid written request of one or more shareholders holding shares of
record of the Corporations common stock representing in the aggregate at least twenty percent (the
Requisite Percentage) of the then outstanding shares of the Corporations common stock entitled
to vote on the matter(s) proposed to be voted on at such meeting (each, a Requesting
Shareholder). Such special meeting shall be held at such time and at such place within or without
the State of North Carolina as may be fixed by the Chairman of the Board, in the case of meetings
called by the Chairman of the Board, or by resolution of the Board, in the case of meetings called
by the Board; and any meeting called at the valid request of the Requesting Shareholder(s) pursuant
to this Section 2.4 shall be held at such date, time and place as may be fixed by the Board,
provided that the date of such special meeting shall not be more than ninety (90) days after the
receipt by the Secretary of such request. To be valid, the request or requests must (i) be written,
(ii) be delivered to the Secretary at the Corporations principal executive office (the date on
which the Secretary receives the request is the Delivery Date), (iii) include the specific
purpose(s) of the special meeting of shareholders and the specific matter(s) proposed to be voted
on at the meeting, (iv) include the information required by Section 2.2 of these By-Laws, (v)
include documentary evidence that the Requesting Shareholder(s) own the Requisite Percentage on the
Delivery Date, (vi) include a certification that each such Requesting Shareholder will continue to
hold at least the number of shares of common stock set forth in the request with respect to each
such Requesting Shareholder through the date of the special meeting and (vii) be signed and dated
by the Requesting Shareholder(s) or a duly authorized agent of such Requesting Shareholder(s). If
the Requesting Shareholder(s) are not the beneficial owners of the shares representing the
Requisite Percentage, then the documentary evidence required by subsection (v) of this Section 2.4
must also include proof that the beneficial owners on whose behalf the request(s) are made
beneficially own the Requisite Percentage on the Delivery Date in order for the request to be
valid. For purposes of this Section 2, the term beneficial owner shall have the meaning ascribed
in Rule 13d-3 of the Securities Exchange Act of 1934, as amended.
Any Requesting Shareholder who submitted a written request for a special meeting of shareholders
may revoke that written request at any time by delivering a written revocation to the Secretary at
the Corporations principal executive office. The failure of any Requesting Shareholder to appear
at the special meeting of shareholders or to send a qualified representative to the special meeting
of shareholders to present such matter(s) to be voted on at the special meeting of shareholders
also constitutes a revocation of such request. If there are more than one Requesting Shareholder
and the revocation or deemed revocation by one or more Requesting Shareholders causes the remaining
Requesting Shareholders to hold in the aggregate less than the Requisite Percentage, the Board of
Directors, in its discretion, may cancel the special meeting. If none of the Requesting
Shareholder(s) appears or sends a qualified representative to the special meeting, the Corporation
need not present the matter(s) requested by the Requesting Shareholder(s) at the special meeting.
The Corporation is not required to call a special meeting of shareholders pursuant to this Section
2.4 with respect to any matter if (w) the Delivery Date is during the period commencing 90 days
prior to the first anniversary of the date of the immediately preceding annual meeting and ending
on the date of the next annual meeting, (x) an identical or substantially similar matter was
included on the agenda of any annual or special meeting of shareholders held within 120 days prior
to the Delivery Date or will be included on the agenda at an annual or special meeting to be held
within 90 days after the Delivery Date (and for purposes of this clause (x), the nomination,
election or removal of directors, changing the size of the Board of Directors and filling of
vacancies and/or newly created directorships resulting from any increase in the authorized number
of directors shall be considered an identical or substantially similar matter with respect to all
matters involving nomination, election or removal of directors, changing the size of the Board of
Directors and filling of vacancies and/or newly created directorships resulting from any increase
in the authorized number of directors), (y) the purpose of the special meeting of shareholders is
unlawful,
or (z) the written request for a special meeting of shareholders itself, including the item of
business proposed, violated applicable law(s) or this Section 2.4.
The business conducted at the special meeting of shareholders called in accordance with this
Section 2.4 shall be limited to the business set forth in the notice of the meeting; provided,
however, that the Board of Directors may submit additional matters to the shareholders at the
meeting by including those matters in the notice of the special meeting of shareholders.
Section 2.5 Notice of Meetings. Notice of each meeting of the shareholders of the Corporation,
whether annual or special, shall be given at least ten (10) but not more than sixty (60) days
before the day on which the meeting is to be held to each shareholder entitled to vote thereat, by
mailing a written or printed notice thereof, postage prepaid, addressed to him at his address as it
appears on the stock ledger of the Corporation, provided, however, that notice is not required to
be given to a shareholder if (i) notice of two consecutive annual meetings, and all notices of
meetings during the period between those two consecutive annual meetings, have been sent to the
shareholder at the shareholders address as shown on the stock ledger of the Corporation and have
been returned undeliverable; or (ii) all, but not less than two, payments of dividends on
securities during a 12-month period, or two consecutive payments of dividends on securities during
a period of more than 12 months, have been sent to the shareholder at the shareholders address as
shown on the stock ledger of the Corporation and have been returned undeliverable. If any
shareholder delivers to the Corporation a written notice setting forth the shareholders current
address, the requirement that notice be given to the shareholder shall be reinstated. In the case
of a special meeting, the notice of meeting shall include a description of the purpose or purposes
for which the meeting is called; but, in the case of an annual or substitute annual meeting, the
notice of meeting need not include a description of the purpose or purposes for which the meeting
is called unless such a description is required by the provision of the North Carolina Business
Corporation Act. Except as otherwise prescribed by statute, notice of any adjourned meeting of
shareholders need not be given.
Section 2.6 Voting, Inspectors of Election. All shares of one or more classes or series that under
the Articles of Incorporation or the North Carolina Business Corporation Act are entitled to vote
and be counted together collectively on a matter at a meeting of shareholders constitute a voting
group within the meaning of the North Carolina Business Corporation Act. All shares entitled by the
Articles of Incorporation or the North Carolina Business Corporation Act to vote generally on a
matter are for that purpose a single voting group. Classes or series of shares shall not be
entitled to vote separately by voting group unless expressly authorized by the Articles of
Incorporation or specifically required by law. At any meeting of the shareholders of the
Corporation, each shareholder entitled to vote may vote in person or by proxy provided that no
proxy shall be voted after eleven (11) months from its date unless said proxy provides for a longer
period. Unless otherwise provided by the Articles of Incorporation or By-laws, action on a matter
by a voting group for which a quorum is present is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action. 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. At
all meetings of shareholders, the polls shall be opened and closed, the proxies and ballots shall
be received, taken in charge and examined, and all questions concerning the qualifications of
voters, the validity of proxies and the acceptance or rejection of proxies and of votes shall be
decided by three (3) inspectors of election. Such inspectors of election, together with one
alternate, to serve in the event of death, inability or refusal by any of said inspectors of
election to serve at the meeting, none of whom need be a shareholder of the Corporation, shall be
appointed by the Board, or, if no such appointment or appointments shall have been made, then by
the presiding officer at the meeting. If, for any reason, any inspector of election so appointed
shall fail to attend, or refuse or be unable to serve, a substitute shall be appointed to serve as
inspector of election, in his place or stead, by the presiding officer at the meeting. No director
or candidate for the office of director shall be appointed as an inspector. Each inspector shall
take and subscribe an oath or affirmation to execute faithfully the duties of inspector at such
meeting with strict impartiality and according to the best of his ability. After the balloting, the
inspectors shall make a certificate of the result of the vote taken.
Section 2.7 Quorum, Presiding Officer. Except as otherwise prescribed by statute, the Articles of
Incorporation or in a By-Law approved by the shareholders, at any meeting of the shareholders of
the Corporation, shares entitled to vote as a separate voting group may take action on a matter at
the meeting only if a quorum of that voting group exists. The presence in person or by proxy of the
holders record of a majority of the votes entitled to be cast on the matter by the 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 a new record date is or must be set for that
adjourned meeting. 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 the shareholders shall
be presided over by the Chairman of the Board, or, if the Chairman is not 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 2.8 Lists of Shareholders. It shall be the duty of the officer of the Corporation who shall
have charge of the stock ledger of the Corporation, either directly or through another officer
designated by him or through a transfer agent or transfer clerk appointed by the Board, to prepare
and make a complete list of shareholders entitled to notice of a shareholders meeting, arranged in
alphabetical order by voting group, and showing the address of and number of shares held by each
shareholder. Such list shall be open to the examination of any shareholder at the place where said
election is to be held beginning two (2) business days after notice of the meeting is given for
which the list was prepared, and shall be produced and kept at the time and place of election,
during the whole time thereof, subject to the inspection of any shareholder who may be present.
Article III
Board of Directors
Section 3.1 Powers, Number, Term, Election. The property, business and affairs of the Corporation
shall be managed by the Board. The Board shall consist of twelve (12) directors, but the number of
directors may be increased, and may be decreased to any number not less than three (3), by
resolution adopted by three-fourths of the whole Board; provided, however, that the number of
directors which shall constitute the whole Board shall not be reduced to a number less than the
number of directors then in office, unless such reduction shall become effective only at and after
the next ensuing meeting of shareholders for the election of directors, or upon the resignation of
an incumbent director. Each director shall hold office from the time of his election and
qualification until the annual meeting of shareholders next succeeding his election and until his
successor shall have been duly elected and shall have qualified, or until his death, resignation or
removal. The term of a director elected to fill a vacancy expires at the next shareholders meeting
at which directors are elected. A decrease in the number of directors does not shorten an incumbent
directors term. No director need be a shareholder. Except as provided in Section 6.4, the
directors shall be elected at the annual meeting of shareholders. Only persons who are
nominated
in accordance with the provisions set forth in these By-Laws shall be eligible to be elected as
directors at an annual or special meeting of shareholders called for that purpose. Nomination for
election to the Board shall be made by or at the direction of the Board or a nominating committee
appointed by the Board. Nomination for election of any person to the Board may also be made by a
shareholder at any annual meeting, in accordance with Section 2.2, and at a special meeting of
shareholders called for that purpose, if made by the close of business on the seventh day following
the date on which notice of such special meeting is first given to shareholders and otherwise made
in accordance with Section 2.2.
Section 3.2 Place of Meetings. The Board may hold its meetings at such place or places within or
without the State of North Carolina as it may from time to time by resolution determine, or as
shall be specified or fixed in the respective notices or waivers of notice thereof. Any regular or
special meeting may be held by conference telephone or similar communications equipment so long as
all persons participating in such meeting can hear one another, and participation in such a
telephonic meeting shall constitute presence in person.
Section 3.3 First Meeting. After each annual election of directors, on the same day and at the
place where such election is held, the newly elected Board shall meet for the purpose of
organization, the election of officers and the transaction of other business. Notice of such
meeting need not be given. Such meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the Board, or in a
waiver of notice thereof signed by all the directors.
Section 3.4 Regular Meetings. Regular meetings of the Board may be held at such time and place and
in such manner as the Board may from time to time by resolution determine. Except as otherwise
expressly prescribed by statute, the Articles of Incorporation or these By-Laws, notice of regular
meetings need not be given.
Section 3.5 Special Meetings. Special meetings of the Board shall be held whenever called by the
Chairman of the Board, or by the Secretary upon the written request filed with the Secretary by any
four (4) directors. Notice of the time, place and manner of each such special meeting shall be
mailed to each director, at his residence or usual place of business, not later than the second day
before the day on which such meeting is to be held, or shall be sent addressed to him at such place
by telegraph or other electronic transmission, or shall be delivered personally or by telephone,
not later than six oclock in the afternoon of the day before the day on which such meeting is to
be held. Except as otherwise prescribed by statute, the Articles of Incorporation or these By-Laws,
and except in the case of a special meeting of the Board called for the purpose of removing an
officer or officers of the Corporation or the filling of a vacancy or vacancies in the Board or of
amending the By-Laws, notice or waivers of notice of any meeting of the Board need not set forth
the purpose or purposes of the meeting.
Section 3.6 Quorum. Except as otherwise prescribed by statute or by these By-Laws, the presence of
a majority of the full Board shall constitute a quorum for the transaction of business at any
meeting, and the act of a majority of the directors present at a meeting at which a quorum shall be
present shall be the act of the Board. Any meeting of the Board may be adjourned by a majority vote
of the directors present at such meeting. In the absence of a quorum, the Chairman of the Board or
a majority of the directors present may adjourn such meeting until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act only as a board and the
individual directors shall have no power as such.
Section 3.7 Indemnification. Unless the Board of Directors shall determine otherwise, the
Corporation shall indemnify, to the full extent permitted by law, any person who was or is, or who
is threatened to be made, a party to an action, suit or proceeding (and any appeal therein),
whether civil, criminal,
administrative, investigative or arbitrative, by reason of the fact that he, his testator or
intestate, is or was a director, officer or employee of the Corporation, or is or was serving at
the request of the Corporation as a director, officer or employee of another enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding. Such indemnification
may, in the discretion of the Board, include advances of a directors, officers or employees
expenses prior to final disposition of such action, suit or proceeding. The right of
indemnification provided for in this Section 3.7 shall not exclude any rights to which such persons
may otherwise be entitled by contract or as a matter of law. The Board shall take all such action
as may be necessary and appropriate to authorize the Corporation to pay the indemnification
required by this By-Law, including, without limitation, making a determination that indemnification
is permissible in the circumstances and a good faith evaluation of the manner in which the claimant
for indemnity acted and of the reasonable amount of indemnity due him. The Board may appoint a
committee or special counsel to make such determination and evaluation.
Section 3.8 Presumption of Assent. A director who is present at a meeting of the Board or a
committee of the Board when corporate action is taken is deemed to have assented to the action
taken unless (a) he objects at the beginning of the meeting, or promptly upon his arrival, to
holding it or to transacting business at the meeting, or (b) his dissent or abstention from the
action taken is entered in the minutes of the meeting, or (c) he files written notice of his
dissention or abstention with the presiding officer of the meeting before its adjournment or with
the corporation immediately after the adjournment of the meeting. Such right of dissent or
abstention is not available to a director who votes in favor of the action taken.
Section 3.9 Written Consents. Any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting, if, before or after such action,
unrevoked written consents thereto are signed by all members of the Board or of such committee, as
the case may be, and such written consents are filed with the minutes of proceedings of the Board
or committee. Action taken under this section is effective when one or more unrevoked
consents signed by all of the directors are delivered to the Corporation, unless the consents
specify a different effective date. A directors consent to action may be revoked in a writing
signed by the director and delivered to the Corporation prior to the action becoming effective.
Article IV
Committees
Section 4.1 Designation, Vacancies, etc. The Board may from time to time by resolution create
committees of directors with such functions, duties and powers as the Board shall by resolution
prescribe. The creation of a committee of the Board and appointment of members to it must be
approved by the greater of (a) a majority of the number of directors in office when the action is
taken or (b) the number of directors required to take action pursuant to Section 3.6. Each
committee may have one or more members, except any executive committee shall have three or more
members, as provided in the Articles of Incorporation. A majority of all the members of any such
committee may determine its actions and rules or procedure, and fix the time, place and manner of
its meetings, unless the Board shall otherwise provide. The Board shall have power to change the
members of any such committee at any time, to fill vacancies, and to discharge any such committee,
either with or without cause, at any time.
Article V
Chairman of the Board and Officers
Section 5.1 Chairman of the Board. The Board of Directors shall annually elect one of its own
members as the Chairman of the Board of Directors (the Chairman of the Board). The Chairman of
the Board may also be the Chief Executive Officer or any other officer of the Corporation. The
Chairman of the Board shall preside at the meetings of the Board and may call meetings of the Board
and of any committee thereof, whenever he deems it necessary, and he shall call to order and
preside at all meetings of the shareholders of the Corporation. In addition, he shall have such
other powers and duties as the Board shall designate from time to time.
Section 5.2 Principal Officers. The principal officers of the Corporation shall be a Chief
Executive Officer, President, one or more Vice Presidents, a Secretary, a Treasurer, a Controller
and such other officers as the Board shall designate from time to time with such powers and duties
as the Board shall determine. The Corporation may also have an Executive Chairman and/or one or
more Vice Chairmen, each of whom shall have such powers and duties as the Board shall designate
from time to time. Any two or more of these offices may be held by the same person, except that
neither a Chief Executive Officer nor a President may also serve as a Vice President, Secretary or
Treasurer (as provided in the Articles of Incorporation) and no officer may act in more than one
capacity where action of two or more officers is required. The Board may require any such officer
to give security for the faithful performance of his duties.
Section 5.3 Election, Term of Office, Qualification. The principal officers of the Corporation
shall be elected annually by the Board and each shall hold office until his successor shall have
been duly elected and shall have qualified, or until his death, or until he shall resign, or until
he shall have been removed in the manner hereinafter provided.
Section 5.4 Chief Executive Officer. The Chief Executive Officer of the Corporation shall have
supervision of its policies, business, and affairs, and such other powers and duties as are
commonly incident to the office of chief executive officer. The Chief Executive Officer shall have
power to sign all certificates of stock, bonds, deeds and contracts of the Corporation.
Section 5.5 President. The President (who may also be the Chief Executive Officer) shall have such
powers and duties as the Board shall designate from time to time. The President shall have power to
sign all certificates of stock, bonds, deeds and contracts of the Corporation.
Section 5.6 Vice Presidents. Each Vice President shall have such powers and perform such duties as
the Board or the Chief Executive Officer may from time to time prescribe. The Board may elect or
designate one or more of the Vice Presidents as Executive Vice Presidents, Senior Vice Presidents
or with such other title as the Board may deem appropriate.
Section 5.7 The Treasurer. The Treasurer shall keep, deposit, invest and disburse the funds and
securities of the Corporation, shall keep full and accurate accounts of the receipts and
disbursements of the Corporation, shall maintain insurance coverage on the Corporations assets,
and, in general, shall perform all the duties incident to the office of Treasurer and such other
duties as may from time to time be assigned to him by the Chief Executive Officer or the Board.
Section 5.8 The Secretary. The Secretary shall act as secretary of, and keep the minutes of, all
meetings of the Board and of the shareholders, shall be custodian of the seal of the Corporation
and shall affix and attest the seal to all documents the execution of which on behalf of the
Corporation under its seal shall have been specifically or generally authorized by the Board, and,
in general, shall perform all the duties incident to the office of Secretary and such other duties
as may from time to time be assigned by the Chief Executive Officer or the Board.
Section 5.9 The Controller. The Controller shall be the chief accounting officer of the
Corporation, shall have charge of its accounting department and shall keep or cause to be kept full
and accurate records of the assets, liabilities, business and transactions of the Corporation.
Section 5.10 Additional Officers. The Board may elect or appoint such additional officers as it may
deem necessary or advisable, and may delegate the power to appoint such additional officers to any
committee or principal officer. Such additional officers shall have such powers and duties and
shall hold office for such terms as may be determined by the Board or such committee or officer.
Section 5.11 Salaries. The Salaries of the officers of the Corporation shall be fixed from time to
time in the manner prescribed by the Board.
Article VI
Removal, Resignations, Vacancies and Salaries
Section 6.1 Removal of Directors. Any director may be removed at any time, either with or without
cause, by a vote of the shareholders entitled to vote at a special meeting of the shareholders
called for that purpose, if the number of votes cast to remove such director exceeds the number of
votes cast not to remove him, and the vacancy in the Board caused by any such removal may be filled
by the shareholders at such meeting and, if not filled thereat, the vacancy caused by such removal
may be filled by the directors as provided in Section 6.4 hereof.
Section 6.2 Removal of Officers. Any officer of the Corporation elected or appointed by the Board,
or appointed by any committee or principal officer of the Corporation pursuant to authority
delegated by the Board, may be removed at any time, either with or without cause, by resolution
adopted by a majority of the whole Board at a regular meeting of the Board or at a special meeting
thereof called for such purpose or by the appointing committee or appointing officer or by
any other officers authorized by the Board of Directors.
Section 6.3 Resignation. Any director or officer of the Corporation may at any time resign by
giving written notice to the Board, the Chairman of the Board, the Chief Executive Officer, or the
Secretary. Any such resignation shall take effect at the time specified therein or, if no time
shall be specified therein, at the time of the receipt thereof, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6.4 Vacancies. Any vacancy in the Board caused by death, resignation, disqualification, an
increase in the number of directors, or any other cause, may be filled by the majority vote of the
remaining directors, though less than a quorum at any regular meeting of the Board or any special
meeting thereof called for the purpose, or by the shareholders of the Corporation at the next
annual meeting or at any special meeting called for the purpose, and the directors so chosen shall
hold office, subject to the provisions of these By-Laws, until the next annual meeting of
shareholders for the election of directors and until his successor shall be duly elected and shall
qualify. Any vacancy in any office, caused by death, resignation, removal, disqualification or any
other cause, shall be filled for the unexpired portion of the term in the manner prescribed in
these By-Laws for regular election or appointment to such office.
Section 6.5 Compensation. Each director who shall not also be an executive officer of the
Corporation or any of its subsidiary companies and receiving a regular salary for his services, in
consideration of his serving as a director, shall be entitled to receive from the Corporation such
fees for serving as a director
as the Board shall from time to time determine, and each such director, who shall serve as a member
of any committee of the Board, in consideration of his serving as a member of such committee, shall
be entitled to such amount per annum or such fees for attendance at committee meetings as the Board
shall from time to time determine. Nothing contained in this Section shall preclude any director
from serving the Corporation or its subsidiaries in any other capacity and receiving compensation
therefor.
Article VII
Contracts, Loans, Checks, Drafts, Deposits, Etc.
Section 7.1 Contracts and Loans. Except as authorized pursuant to a resolution of the Board or
these By-Laws, no officer, agent or employee of the Corporation shall have any power or authority
to bind the Corporation by any contract or engagement, to effect any loan on its behalf, to issue
any negotiable paper in its name, to pledge its credit, to render it pecuniarily liable for any
purpose or for any amount, or to pledge, hypothecate or transfer any securities or other property
of the Corporation as security for any loans or advances.
Section 7.2 Checks, Drafts, etc. All checks, drafts, and other instruments or orders for the
payment of monies out of the funds of the Corporation, and all notes or other evidences of
indebtedness, bills of lading, warehouse receipts and insurance certificates of the Corporation
shall be signed on behalf of the Corporation in such manner as shall from time to time be
determined pursuant to a resolution of the Board. All checks, drafts and other instruments or
orders for the payment of monies to or upon the order of the Corporation may be endorsed for
deposit in such manner as shall be determined pursuant to a resolution of the Board.
Section 7.3 Proxies. Unless otherwise provided by resolution of the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, the President, 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.
Article VIII
Shares, Dividends, Etc.
Section 8.1 Share Certificates; Uncertificated Shares. The Board may authorize the issuance of
some or all of the shares of the Corporations classes or series without issuing certificates to
represent such shares. If shares are represented by certificates, the certificates shall be in such
form as required by applicable law and as determined by the Board. Certificates shall be signed in
the name of the Corporation by the Chief Executive Officer, the President or a Vice President, and
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation; provided, however, that, where such certificate is signed (a) by a transfer agent or
an assistant transfer agent or (b) by a transfer clerk acting on behalf of the Corporation, and a
registrar, the signature of any such Chief Executive Officer, President, Vice President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be a facsimile. In case any
duly authorized officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates shall cease to be such
duly authorized officer or officers, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation, such certificate or
certificates shall be deemed to have been adopted by the Corporation and to have been issued and
delivered as though the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures were used thereon had not ceased to be such officer or officers
of the Corporation. All certificates for shares shall be consecutively numbered or otherwise
identified and entered into the stock transfer records of the Corporation. When shares are
represented by certificates, the Corporation shall issue and deliver to each shareholder to whom
such shares have been issued or transferred, certificates representing the shares owned by such
shareholder. When shares are not represented by certificates, then, within a reasonable time after
the issuance or transfer of such shares, the Corporation shall send the shareholder to whom such
shares have been issued or transferred a written statement of the information required on
certificates by applicable law, including Sections 55-6-25(b) and (c) and, if applicable, Section
55-6-27, or any successor provisions, of the North Carolina Business Corporation Act. The issuance
of uncertificated shares shall not affect shares already represented by certificates unless and
until such certificated shares are surrendered to the Corporation for issuance in uncertificated
form. Unless otherwise provided by applicable law, the Articles of Incorporation, or these By-Laws,
(i) the rights and obligations of shareholders are identical, whether or not their shares are
represented by certificates, and (ii) the person in whose name shares of stock shall be registered
on the books of the Corporation shall be deemed to be the owner thereof for all purposes as regards
the Corporation.
Section 8.2 Transfers.
(a) The Board may make such rules and regulations as it may deem expedient concerning the
issue, registration and transfer of (i) certificates representing shares of the stock of the
Corporation, or (ii) evidence of uncertificated shares of the stock of the Corporation, and
may appoint one or more transfer agents or clerks and registrars thereof. Transfer of
shares of the Corporation shall be made only on the stock transfer books of the Corporation
and in accordance with applicable law and these By-Laws.
(b) Upon surrender of a certificate representing shares of the stock of the Corporation
by the registered holder thereof or by his or her attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the Corporation, duly endorsed or
accompanied by proper evidence of succession, assignation or authority to transfer, the
Corporation shall issue a new certificate or provide evidence of the issuance of
uncertificated shares to the shareholder entitled thereto, and the surrendered certificate
shall at once be conspicuously marked Cancelled and filed with the permanent stock records
of the Corporation.
(c) Upon the receipt of proper transfer instructions from the registered holder of
uncertificated shares or from his or her attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation and upon compliance with
applicable law and all appropriate procedures for the transfer of shares in uncertificated
form, such uncertificated shares shall be cancelled, issuance of new equivalent uncertificated shares or certificated shares shall be made to the shareholder entitled thereto and the
transaction shall be recorded upon the stock transfer books of the Corporation.
Section 8.3 Record Date. The Board may fix in advance a date, not exceeding seventy (70) days
preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion or exchange of
stock shall go into
effect, or a date in connection with obtaining such consent, as a record date for the determination
of the shareholders entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights,
or to exercise the rights in respect of any such change, conversion or exchange of stock, or to
give such consent, and in such case such shareholders and only such shareholders as shall be
shareholders of record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting and any adjournment thereof, or to receive payment of such dividend, or to receive
such allotment or rights, or exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid. Except where a date shall have been fixed as a record date for the
determination of the shareholders entitled to vote, as hereinabove provided, no share of stock
shall be voted on at any election of directors which shall have been transferred on the books of
the Corporation within twenty (20) days next preceding such election of directors.
Section 8.4 Lost or Destroyed Certificates. In case of loss, theft, mutilation or destruction of
any certificate evidencing shares of the stock of the Corporation, 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, the Corporation may issue (i) a
new certificate or certificates evidencing such shares of the stock of the Corporation, or (ii)
uncertificated shares of the stock of the Corporation, in place of any certificate or certificates
previously issued by the Corporation.
Article IX
Seal, Fiscal Year, Waivers of Notice, Amendments
Section 9.1 Corporate Seal. The seal of the Corporation shall be circular in form and shall bear
the name of the Corporation and the inscription Corporate Seal, North Carolina. Said seal may be
used by causing it or a facsimile thereof to be impressed or reproduced or otherwise.
Section 9.2 Fiscal Year. Each fiscal year of the Corporation shall end on the last Saturday of
December.
Section 9.3 Waivers of Notice. Anything in these By-Laws to the contrary notwithstanding, notice of
any meeting of the shareholders, the Board, or any committee constituted by the Board need not be
given to any person entitled thereto, if such notice shall be waived by such person in a signed
writing that is delivered to the Corporation for inclusion in the minutes or corporate records
before, at or after such meeting, or if such person shall be present in person (or in the case of a
meeting of the shareholders, be present in person or represented by proxy) at such meeting and
without objecting to such lack of notice at the beginning of the meeting and as otherwise required
by statute.
Section 9.4 Amendments. Unless otherwise provided by statute, the Articles of Incorporation or a
By-Law approved by shareholders, these By-Laws may be altered, amended or repealed or new By-Laws
may be made either:
(a) by the affirmative vote of the holders of record of a majority of the outstanding stock of
the Corporation entitled to vote thereon, at any annual or special meeting of the shareholders,
provided that notice of the proposed alteration, amendment or repeal or of the proposed new
By-Law or By-Laws be included in the notice of such meeting or waiver thereof, or
(b) by the affirmative vote of a majority of the whole Board at any regular meeting of the
Board, or any special meeting thereof, provided that notice of the proposed alteration,
amendment or repeal or
of the proposed new By-Law or By-Laws be included in the notice of such special meeting or
waiver thereof or all of the directors at the time in office be present at such special meeting.
provided, however, that (i) no change of the time or place for the election of directors shall be
made within sixty (60) days next before the day on which such election is to be held, and that in
case of any change of such time or place, notice thereof shall be given to each shareholder in
accordance with Section 2.5 hereof at least twenty (20) days before the election is held, and (ii)
the Board may alter, amend or repeal any By-Laws, but any By-Laws made by the Board may be altered,
amended or repealed by the shareholders.
Section 9.5 Electronic Transactions. The Corporation may conduct any action or set of actions by
any electronic means.