Attached files
Exhibit
3.2
BYLAWS
OF
LOWE'S COMPANIES, INC.
As Amended and Restated May 28, 2010
INDEX
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ARTICLE I.
OFFICES
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1
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ARTICLE II.
SHAREHOLDERS
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1
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SECTION
1.
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ANNUAL
MEETING
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1
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SECTION
2.
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SPECIAL
MEETINGS
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1
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SECTION
3.
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PLACE
OF MEETING
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2
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SECTION
4.
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NOTICE
OF MEETING
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2
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SECTION
5.
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CLOSING
OF TRANSFER BOOKS OR
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| FIXING OF RECORD DATE |
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3
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SECTION
6.
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VOTING
LISTS
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3
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SECTION
7.
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QUORUM
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3
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SECTION
8.
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PROXIES;
ELECTRONIC AUTHORIZATION
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4
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SECTION
9.
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VOTING
OF SHARES
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4
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SECTION
10.
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CONDUCT
OF MEETINGS
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5
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SECTION
11.
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NOMINATION
OF DIRECTORS
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5
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SECTION
12.
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NOTICE
OF BUSINESS
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6
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ARTICLE III.
BOARD OF DIRECTORS
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7
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SECTION
1.
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GENERAL
POWERS
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7
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SECTION
2.
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NUMBER,
TENURE AND QUALIFICATIONS
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7
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SECTION
3.
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REGULAR
MEETINGS
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7
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SECTION
4.
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SPECIAL
MEETINGS
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7
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SECTION
5.
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NOTICE
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8
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SECTION
6.
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QUORUM
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8
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SECTION
7.
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MANNER
OF ACTING
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8
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SECTION
8.
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VACANCIES
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8
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SECTION
9.
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COMPENSATION
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8
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SECTION
10.
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PRESUMPTION
OF ASSENT
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8
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SECTION
11.
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ACTION
WITHOUT MEETING
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9
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SECTION
12.
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INFORMAL
ACTION BY DIRECTORS
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9
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SECTION
13.
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COMMITTEES
GENERALLY
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9
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SECTION
14.
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EXECUTIVE
COMMITTEE
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9
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SECTION
15.
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AUDIT
COMMITTEE
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10
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SECTION
16.
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COMPENSATION
COMMITTEE
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10
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SECTION
17.
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GOVERNANCE
COMMITTEE
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10
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SECTION
18.
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GOVERNMENT/LEGAL
AFFAIRS COMMITTEE
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11
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SECTION
19.
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SALARY
ADMINISTRATION; DIRECTORS
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| COMPENSATION |
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11
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ARTICLE IV.
INDEMNIFICATION
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11
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SECTION
1.
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INDEMNIFICATION
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11
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SECTION
2.
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LIMITATION
ON INDEMNIFICATION
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11
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SECTION
3.
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BOARD
DETERMINATION
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11
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SECTION
4.
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RELIANCE
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12
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SECTION
5.
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AGENTS
AND EMPLOYEES
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12
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SECTION
6.
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EXPENSES
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12
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SECTION
7.
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INSURANCE
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12
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SECTION
8.
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VESTING
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12
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ARTICLE V.
OFFICERS
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12
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SECTION
1.
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TITLES
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12
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SECTION
2.
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ELECTION
AND TERM OF OFFICE
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13
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SECTION
3.
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REMOVAL
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13
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SECTION
4.
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CHAIRMAN
OF THE BOARD OF DIRECTORS
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13
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SECTION
5.
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VICE
CHAIRMAN OF THE BOARD OF DIRECTORS
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13
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SECTION
6.
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PRESIDENT
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13
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SECTION
7.
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VICE
PRESIDENTS
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13
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SECTION
8.
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SECRETARY
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13
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SECTION
9.
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TREASURER
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13
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SECTION
10.
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CONTROLLER
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14
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ARTICLE VI.
DEPARMENTAL DESIGNATIONS
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14
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SECTION
1.
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DEPARTMENTAL
DESIGNATIONS
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14
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ARTICLE VII.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
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14
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SECTION
1.
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CERTIFICATES
FOR SHARES; NON-CERTIFICATED
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| SHARES |
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14
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SECTION
2.
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TRANSFER
OF SHARES
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14
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SECTION
3.
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LOST
CERTIFICATES
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15
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ARTICLE VIII.
FISCAL YEAR
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15
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ARTICLE IX.
DIVIDENDS
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15
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ARTICLE X.
SEAL
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15
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ARTICLE XI.
WAIVER OF NOTICE
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16
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ARTICLE XII.
AMENDMENTS
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16
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BYLAWS
OF
LOWE'S
COMPANIES, INC.
As
Amended and Restated May 28, 2010
ARTICLE I.
OFFICES
The principal office of the corporation in the State of North Carolina shall be located in the County of Iredell. The registered office of the corporation, required by law to be continuously maintained in the State of North Carolina, may be, but need not be, identical with the principal office and shall be maintained at that location identified as the address of the business office of the registered agent with the North Carolina Secretary of State. The corporation may have such other offices either within or without the State of North Carolina, as the Board of Directors may designate or the business of the corporation may require from time to time.
ARTICLE
II. SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of shareholders shall be held each year on a day in the month of May to be designated by the Board of Directors, at an hour to be designated by the Chairman of the Board, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the annual meeting shall not be held on the day designated by this Section 1, a substitute annual meeting shall be called in accordance with the provisions of Section 2 of this Article II. A meeting so called shall be designated and treated for all purposes as the annual meeting.
SECTION
2. SPECIAL
MEETINGS.
(a) Special
meetings of the shareholders for any purpose or purposes may be called by the
Chairman of the Board or by a majority of the Board of Directors, and shall be
called by the Secretary upon the written request of shareholders owning in the
aggregate not less than twenty-five percent (25%) of the total number of shares
of capital stock of the corporation outstanding and entitled to vote on the
matter or matters to be brought before the proposed special
meeting.
(b) A
request to the Secretary shall be signed by each shareholder, or a duly
authorized agent of such shareholder, requesting the special meeting and shall
set forth: (i) a statement of the specific proposal(s) to be brought
before the special meeting, the reasons for conducting such business at the
special meeting and any material interest in such business of each shareholder
requesting the special meeting, (ii) the name and address, as they appear on the
corporation’s books, of each shareholder requesting the special meeting, (iii)
the number of shares which are owned by each shareholder requesting the special
meeting, including shares beneficially owned and shares held of record, and (iv)
any other
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information
that is required to be set forth in a shareholder’s notice required to be
delivered pursuant to Section 11 or Section 12 of Article II of these
Bylaws. A request to call a special meeting shall include documentary
evidence of each requesting shareholders’ record and beneficial ownership of the
corporation’s shares of capital stock.
(c) A
special meeting requested by shareholders shall be held at such date and time as
may be fixed by the Board of Directors; provided, however, that the date of any
such special meeting shall be not more than ninety (90) days after the request
to call the special meeting is received by the Secretary. Notwithstanding
the foregoing, a special meeting requested by shareholders shall not be held if
(i) the Board of Directors calls or has called an annual or special meeting of
shareholders to be held within ninety (90) days after the Secretary receives the
request for the special meeting and the Board of Directors determines in good
faith that the business of such meeting includes (among any other matters
properly brought before the annual meeting) the purpose(s) specified in the
request or (ii) an annual or special meeting was held not more than 12 months
before the date on which the request for a special meeting was delivered to the
Secretary that included the purpose(s) specified by the requesting shareholders
in their request for a special meeting, with such determination being made in
good faith by the Board of Directors.
(d) Business
transacted at a special meeting requested by shareholders shall be limited to
the purpose(s) stated in the request for the special meeting; provided, however,
that nothing herein shall prohibit the Board of Directors from submitting
additional matters to shareholders at any such special meeting.
(e) Any
shareholder may revoke a request for a special meeting at any time by written
revocation delivered to the Secretary, and if, following such revocation, there
are un-revoked requests from shareholders holding in the aggregate less than the
requisite number of shares entitling the shareholders to request the calling of
a special meeting, the Board of Directors, in its discretion, may cancel the
special meeting.
SECTION
3. PLACE OF
MEETING. The Board of Directors may designate any place, either within or
without the State of North Carolina, as the place of meeting for any annual or
special meeting of the shareholders. In the event the directors do not designate
the place of meeting for either an annual or special meeting of the
shareholders, the Chairman of the Board may designate the place of
meeting. If the Chairman of the Board does not designate the place of
meeting, the meeting shall be held at the offices of the corporation in
Mooresville, North Carolina.
SECTION
4. NOTICE OF
MEETING. Written notice stating the place, day, and
hour of
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given not less than 10 nor more than 60 days
before the day of the meeting, by any means of communication permitted under or
authorized by the North Carolina Business Corporation Act, including without
limitation, in person; by electronic means; or by mail or private carrier, by or
at the direction of the Secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting. When a
meeting is adjourned it shall
not be necessary to give any notice of the adjourned
2
meeting
other than by announcement at the meeting at which the adjournment is taken
unless a new record date for the adjourned meeting is or must be fixed, in which
event notice shall be given to shareholders as of the new record
date.
SECTION
5. CLOSING OF TRANSFER
BOOKS OR FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at the meeting or any adjournment
thereof, or shareholders entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose, the
Board of Directors of the corporation may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any case, 60 days. If
the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least 10 days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than 70 days and, in case of a meeting of
shareholders, not less than 10 days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken. If the
stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or of shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section 5, such determination
shall apply to any adjournment thereof if the meeting is adjourned to a date not
more than 120 days after the date fixed for the original meeting.
SECTION
6. VOTING
LISTS. The officer or agent having charge of the stock transfer books for
shares of the corporation shall make before each meeting of shareholders a
complete list of the shareholders entitled to vote at such meeting arranged in
alphabetical order and by voting group (and within each voting group by class or
series of shares), with the address of and the number of shares held by each.
For a period beginning two business days after notice of the meeting is given
and continuing through the meeting, this list shall be available at the
corporation's principal office for inspection by any shareholder at any time
during usual business hours. The 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. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled to
examine such list or transfer books or to vote any meeting of
shareholders.
SECTION
7. QUORUM.
Shares entitled to vote as a separate voting group may take action on a matter
at a meeting if a quorum of that voting group exists with respect to that
matter. In the absence of a quorum at the opening of any meeting of
shareholders, the meeting may be adjourned from time to time by the vote of the
majority of the votes cast on the motion to adjourn. 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
3
remainder
of the meeting and for any adjournment of the meeting unless a new record date
is or must be set for the 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 the Articles of Incorporation, a Bylaw adopted by
the shareholders, or the North Carolina Business Corporation Act requires a
greater number of affirmative votes. The standard for electing
directors shall be as set forth in the corporation’s Articles of
Incorporation.
SECTION
8. PROXIES; ELECTRONIC
AUTHORIZATION
(a) At
all meetings of shareholders, a shareholder may vote by proxy executed in
writing by the shareholder or by his duly authorized attorney in
fact. Such proxy shall be filed with the secretary of the corporation
before or at the time of the meeting. No proxy shall be valid after 11 months
from the date of its execution, unless otherwise provided in the proxy. If a
proxy for the same shares confers authority upon two or more persons and does
not otherwise provide a majority of them present at the meeting or if only one
is present at the meeting then that one may exercise all the powers conferred by
the proxy; but if the proxy holders present at the meeting are divided as to the
right and manner of voting in any particular case, and there is no majority, the
voting of such shares shall be prorated.
(b) The
secretary may approve procedures to enable a shareholder or a shareholder’s duly
authorized attorney in fact to authorize another person or persons to act for
him or her as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, internet transmission, telephone transmission 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 transmission must either set
forth or be submitted with information from which the inspectors of election can
determine that the transmission was authorized by the shareholder or the
shareholder’s duly authorized attorney in fact. If it is determined that such
transmissions are valid, the inspectors shall specify the information upon which
they relied. Any copy, facsimile telecommunications or other reliable
reproduction of the writing or transmission created pursuant to this Section 8
may be substituted 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.
SECTION
9. VOTING OF
SHARES. Except as otherwise provided by law, each outstanding share of
capital stock of the corporation entitled to vote shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders. The vote of a
majority of the shares voted on any matter at a meeting of shareholders at which
a quorum is present shall be the act of the shareholders on that matter, unless
the vote of a greater number is required by law or by the Articles of
Incorporation or Bylaws. Voting on all substantive matters shall be by a ballot
vote on that particular matter. Voting on procedural matters shall be by voice
vote or by a show of hands unless the holders of one-tenth of the shares
represented at the meeting shall demand a ballot vote on procedural
matters.
4
SECTION
10. CONDUCT OF
MEETINGS. At each meeting of the shareholders, the Chairman of the Board
shall act as chairman and preside. In his absence, the Board may designate
another officer or director to preside. The Secretary or an Assistant Secretary,
or in their absence, a person whom the Chairman of such meeting shall appoint,
shall act as secretary of the meeting.
SECTION
11. NOMINATION OF
DIRECTORS. Only persons who are nominated in accordance with
the provisions set forth in these Bylaws shall be eligible to be elected as a
director at a meeting of shareholders. Nominations of persons for
election to the Board of Directors may be made at a meeting of shareholders
(a) by or at the direction of the Board of Directors, or (b) by any
shareholder of the corporation who is a shareholder of record at the time of
giving of notice as provided for in this Section 11, 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 Section 11. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary. To be timely, a
shareholder’s notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than one hundred twenty
(120) days nor more than one hundred fifty (150) days prior to the first
anniversary of the preceding year’s annual meeting of shareholders; provided,
however, in the event 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, then to be timely notice by a 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’s
notice shall set forth (i) as to each person whom the shareholder proposes
to nominate for election or reelection as a director, (1) information relating
to such person similar in substance to that required to be disclosed in
solicitations of proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, (2) such person’s written
consent to being named as nominee and to serving as a director if elected, and
(3) such person’s written consent to provide information that the Board of
Directors reasonably requests to determine whether such person qualifies as an
independent director under the corporation’s Corporate Governance Guidelines,
and (ii) as to the shareholder giving the notice: (A) the name and
address, as they appear on the corporation’s books, of such shareholder and any
Shareholder Associated Person (defined below) covered by clauses (B) and (C),
(B) the number of shares of the corporation which are owned of record or
beneficially by such shareholder and by any Shareholder Associated Person with
respect to the corporation’s securities and (C) any derivative positions held of
record or beneficially by the shareholder and any Shareholder Associated Person
and whether and the extent to which any hedging or other transaction or series
of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding has been made, the effect or intent of
which is to increase or decrease the voting power of, such shareholder or any
Shareholder Associated Person with respect to the corporation’s securities. At
the request of the Board of Directors, any person nominated by the Board 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 chairman of the meeting shall, if the facts warrant,
determine
5
and
declare to the meeting that a nomination was not made in accordance with the
provisions prescribed by these Bylaws and, if the chairman should so determine,
the chairman shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 11, a
shareholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section 11.
“Shareholder
Associated Person” of any shareholder means (A) any person controlling, directly
or indirectly, or acting in concert with, such shareholder, (B) any beneficial
owner of shares of stock 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.
SECTION
12. NOTICE
OF BUSINESS. At any meeting of shareholders, only business that is
properly brought before the meeting may be presented to and acted upon by
shareholders. To be properly brought before the meeting, business must be
brought (a) by or at the direction of the Board of Directors or (b) by a
shareholder or another person authorized to act for him or her as proxy who has
given timely notice in writing to the Secretary. If a shareholder who has given
timely notice in writing to the Secretary of business to be brought before the
meeting intends to authorize another person to act for him or her as proxy to
present the proposal at the meeting, the shareholder shall give notice of such
authorization in writing to the Secretary not less than three business days
before the date of the meeting, including the name and contact information for
such person. To be timely, a shareholder’s notice shall be delivered to, or
mailed and received at, the principal executive offices of the corporation not
less than ninety (90) days nor more than one hundred twenty (120) days prior to
the first anniversary of the preceding year’s annual meeting of shareholders;
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, then to be timely notice by a shareholder must be so
delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th 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. Notice of actions to be
brought before the annual meeting pursuant to (b) above shall set forth, as to
each matter the shareholder proposes to bring before the meeting: (i) a brief
description of the business desired to be brought before the meeting and the
reason as for bringing such business before the meeting, and (ii) as to the
shareholder giving the notice, (A) the name and address, as they appear on the
corporation’s books, of such shareholder and any Shareholder Associated Person
covered by clauses (B), (C) and (D), (B) the number of shares of the corporation
which are owned of record or beneficially by such shareholder and by any
Shareholder Associated Person with respect to the corporation’s securities, (C)
any derivative positions held of record or beneficially by the shareholder and
any Shareholder Associated Person and whether and the extent to which any
hedging or other transaction or series of transactions has been entered into by
or on behalf of, or any other agreement, arrangement or understanding has been
made, the effect or intent of which is to increase or decrease the voting power
of,
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such
shareholder or any Shareholder Associated Person with respect to the
corporation’s securities; and (D) any material interest of such shareholder or
any Shareholder Associated Person in such business other than his interest as
shareholder of the corporation. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at a meeting of shareholders except in
accordance with the provisions set forth in this Section 12. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
any business was not properly brought before the meeting in accordance with the
provisions prescribed by these Bylaws. If the chairman should so
determine, any such business not so properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this Section 12,
a shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section
12.
ARTICLE III. BOARD OF
DIRECTORS
SECTION
1. GENERAL
POWERS. The business and affairs of the corporation shall be managed by
the Board of Directors except as otherwise provided by law, by the Articles of
Incorporation or by the Bylaws.
SECTION
2. NUMBER, TENURE AND
QUALIFICATIONS. In accordance with the Articles of
Incorporation, the Board of Directors shall each year, prior to the annual
meeting, determine by appropriate resolution the number of directors which shall
constitute the Board of Directors for the ensuing year, and, continuing until
after the annual meeting in 2010, the number of directors which shall constitute
the class of directors being elected at such annual meeting. The
directors may by appropriate resolution adopted between annual meetings of
shareholders increase or decrease the number of directors, but may not decrease
the number of directors below the minimum number specified in the corporation’s
Articles of Incorporation. One director shall be designated and
elected by the Board as Chairman of the Board of Directors, and shall preside at
all meetings of the Board of Directors. The Board may elect a Vice-Chairman
whose only duties shall be to preside at Board meetings in the absence of the
Chairman. Directors need not be residents of the State of North
Carolina or shareholders of the corporation.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors shall be held with such frequency (but no less than quarterly) and at a time and place as shall be determined by the Chairman of the Board of Directors. Any one or more of the directors or members of a committee designated by the directors may participate in a meeting of the Board or committee by means of a conference telephone or similar communications device which allows all persons participating in the meeting to hear each other and such participation in a meeting will be deemed presence in person.
SECTION
4. SPECIAL
MEETINGS. Special meetings of the Board of Directors may be called by or
at the request of the Chairman of the Board of Directors or two of the
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix
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any
place, either within or without the State of North Carolina, as the place for
holding any special meeting of the Board of Directors called by
them.
SECTION
5. NOTICE.
Regular meetings of the Board of Directors may be held without
notice. Notice of any special meeting shall be given, at least two
days before the meeting, by any usual means of communication, including without
limitation, in person; by telephone, facsimile, electronic mail, or other
electronic transmission; or by mail or private carrier. Notice shall be deemed
effective at the earliest of the following:
(a) when
received, or, in the case of oral notice, when actually communicated to the
director;
(b) when
deposited in the United States mail, as evidenced by the postmark or postage
meter date, if mailed with postage thereon prepaid and correctly
addressed;
(c) if
by facsimile or other electronic transmission, by acknowledgement by the
director or the director’s agent or representative of receipt of the electronic
transmission; or
(d) on
the date shown on the confirmation of delivery issued by a private carrier, if
sent by private carrier to the address of the director last known to the
corporation.
Any
director may waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION
6. QUORUM. A
majority of the number of directors shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of the directors present
may adjourn the meeting from time to time without further notice.
SECTION
7. MANNER OF
ACTING. The act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors unless
otherwise required by the Articles of Incorporation.
SECTION
8. VACANCIES.
Any vacancy occurring in the Board of Directors shall be filled as provided in
the Articles of Incorporation.
SECTION
9. COMPENSATION. The
directors may be paid such expenses as are incurred in connection with their
duties as directors. The Board of Directors may also pay to the directors
compensation for their service as directors.
SECTION
10. PRESUMPTION OF
ASSENT. A director of the corporation who is present at a meeting of the
Board of Directors at which action on any corporate matter is taken
8
shall be
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
SECTION
11. ACTION WITHOUT
MEETING. Action taken by a majority of the Board, or a Committee thereof,
without a meeting is nevertheless Board, or Committee, action if written consent
to the action in question is signed by all of the directors, or Committee
members, and filed with the minutes of the proceedings of the Board, or
Committee, whether done before or after the action so taken.
SECTION
12. INFORMAL ACTION BY
DIRECTORS. Action taken by a majority of the directors without a meeting
is action of the Board of Directors if written consent to the action is signed
by all of the directors and filed with the minutes of the proceedings of the
Board of Directors, whether done before or after the action so
taken.
SECTION
13. COMMITTEES
GENERALLY. Committees of the Board of
Directors
shall be reestablished annually at the first Board of Directors Meeting held
subsequent to the Annual Shareholders Meeting. Directors designated to serve on
committees shall serve as members of such committees until the first Board of
Directors
Meeting
following the next succeeding Annual Shareholders Meeting or until their
successors shall have been duly designated. The Board of Directors may designate
a committee chairman and a committee vice chairman from the membership for each
committee established. In the absence of the designation of a committee chairman
or vice chairman by the Board, a committee by majority vote may elect a chairman
or vice chairman from its own membership.
SECTION
14. EXECUTIVE
COMMITTEE. (a) The Board may establish an Executive Committee comprising
not less than three members. This Committee may exercise all of the authority of
the Board of Directors to the full extent permitted by law, but shall not have
power:
i)
To
declare dividends or authorize distributions, except according to a formula or
method, or within limits, prescribed by the Board;
ii)
To
approve or propose to shareholders any action that is required to be approved by
shareholders under the North Carolina Business Corporation Act;
iii) To approve an amendment to the Articles of Incorporation
of the corporation;
iv) To approve a plan of dissolution; merger or
consolidation
v)
To
approve the sale, lease or exchange of all or substantially all of the property
of the corporation;
9
vi)
To
designate any other committee, or to fill vacancies in the Board of Directors or
other committees;
vii)
To amend
or repeal the Bylaws, or adopt new Bylaws;
viii)
To
authorize or approve reacquisition of shares, except according to a formula or
method approved by the Board of Directors;
ix)
To
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, unless the Board of Directors specifically authorizes
the Executive Committee to do so within limits established by the Board of
Directors;
x)
To amend,
or repeal any resolution of the Board of Directors which by its terms is not so
amendable or repealable; or
xi)
To take
any action expressly prohibited in a resolution of the Board of
Directors.
SECTION
15. AUDIT
COMMITTEE. The Board may establish an Audit Committee comprising not less
than three members. The Committee shall be comprised entirely of members of the
Board who qualify as “independent” under the requirements of the Corporate
Governance Rules of the New York Stock Exchange, Section 10A(m)(3) of the
Securities Exchange Act of 1934 and the rules and regulations of the Securities
and Exchange Commission. The Committee shall aid the Board in carrying out its
responsibilities for accurate and informative financial reporting, shall assist
the Board in making recommendations with respect to management's efforts to
maintain and improve financial controls, shall review reports of examination by
the independent registered public accounting firm, and except as otherwise
required by law, shall have authority to act for the Board in any matter
delegated to this Committee by the Board of Directors in the written charter of
the Committee or otherwise. The Committee shall each year appoint and determine
the compensation of an independent registered public accounting firm as the
independent registered public accounting firm for the corporation.
SECTION
16. COMPENSATION
COMMITTEE. The Board may establish a Compensation Committee comprising
not less than three members. The Committee shall be comprised entirely of
members of the Board who qualify as “independent” under the requirements of the
Corporate Governance Rules of the New York Stock Exchange and meet the
definition of “non-employee director” of Rule 16b-3 under the Securities
Exchange Act of 1934, and “outside director” for purposes of Section 162(m) of
the Internal Revenue Code of 1986. Except as otherwise required by law, the
Compensation Committee shall have authority to act for the Board in any matter
delegated to this Committee by the Board of Directors in the written charter of
the Committee or otherwise.
SECTION
17. GOVERNANCE
COMMITTEE. The Board may establish a Governance Committee comprising not
less than three members. The Committee shall be comprised entirely of members of
the Board who qualify as “independent” under the requirements of
10
the
Corporate Governance Rules of the New York Stock Exchange and meet the
definition of “non-employee director” of Rule 16b-3 under the Securities
Exchange Act of 1934, and shall include not less than one-half (1/2) of the
members of the Board who qualify as “independent.” Except as otherwise required
by law, the Governance Committee shall have authority to act for the Board in
any matter delegated to this Committee by the Board of Directors in the written
charter of the Committee or otherwise.
SECTION
18. GOVERNMENT/LEGAL
AFFAIRS COMMITTEE. The Board may establish a Government/Legal Affairs
Committee to consist of not less than three directors.
Except as
otherwise required by law, the Government/Legal Affairs Committee shall have
authority to act for the Board in any manner delegated to this Committee by the
Board of Directors.
SECTION
19. SALARY
ADMINISTRATION; DIRECTORS COMPENSATION. The compensation of employees not
covered by the Compensation Committee duties shall be the responsibility of the
Chief Executive Officer. The compensation of non-employee directors shall be
recommended to the Board of Directors or appropriate committee thereof by the
Chief Executive Officer.
ARTICLE IV.
INDEMNIFICATION
SECTION
1. INDEMNIFICATION. In
addition to any indemnification required or permitted by law, and except as
otherwise provided in these Bylaws, any person who at any
time
serves or has served as a director or officer of the corporation, or in such
capacity at the request of the corporation for any other corporation,
partnership, joint venture, trust or other enterprise, shall have a right to be
indemnified by the corporation to the fullest extent permitted by law against
(i) reasonable expenses, including attorneys' fees, actually and
necessarily
and as incurred by him in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, seeking to hold him liable by reason of the fact that he is or
was acting in such capacity, and (ii) payments made by him in satisfaction of
any judgment, money decree, fine, penalty or reasonable settlement for which he
may have become liable in any such action, suit or proceeding.
SECTION
2. LIMITATION ON
INDEMNIFICATION. The corporation shall not indemnify any person hereunder
against liability or litigation expense he may incur on account of his
activities which were at the time taken known or believed by him to be clearly
in conflict with the best interests of the corporation. The corporation shall
not indemnify any director with respect to any liability arising out of
N.C.G.S.§
55-8-33 (relating to unlawful declaration of dividends) or any transaction from
which the director derived an improper personal benefit as provided in N.C.G.S.
§ 55-2-02(b)(3).
SECTION
3. BOARD
DETERMINATION. If any action is necessary or appropriate to authorize the
corporation to pay the indemnification required by this Bylaw the Board of
Directors shall take such action, including (i) making a good faith evaluation
of the manner in which the claimant for indemnity acted and of the reasonable
amount of indemnify due
11
him, (ii)
giving notice to, and obtaining approval by, the shareholders of the
corporation, and (iii) taking any other action.
SECTION
4. RELIANCE.
Any person who at any time after the adoption of this Bylaw serves or has served
in any of the capacities indicated in this Bylaw shall be deemed to be doing or
to have done so in reliance upon, and as consideration for, the right of
indemnification provided herein. Such right shall inure to the benefit of the
legal representatives of any such person and shall not be exclusive of any other
rights to which such person may be entitled apart from the provision of this
Bylaw.
SECTION
5. AGENTS AND
EMPLOYEES. The provisions of this Bylaw shall not be deemed to preclude
the corporation from indemnifying persons serving as agents or employees of the
corporation, or in such capacity at the request of the corporation for any other
corporation, partnership, joint venture, trust or other enterprise, to the
extent permitted by law.
SECTION
6. EXPENSES.
The corporation shall be entitled to pay the expenses incurred by a director or
officer in defending a civil or criminal action, suit or proceeding in advance
of final disposition upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation against such
expenses.
SECTION
7. INSURANCE.
As provided by N.C.G.S. § 55-8-57,
the corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or
was a
director, officer, employee or agent of the corporation, or who is or was
serving at the request of the corporation as a director, officer or employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise or as a trustee or administrator under an employee benefit plan
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
has the power to indemnify him against such liability.
SECTION
8. VESTING. The rights to advancement
of expenses and indemnification provided for in these Bylaws are contract rights
and neither the amendment nor repeal of such rights, nor the adoption of any
provision of the Articles of Incorporation or the Bylaws of the corporation,
nor, to the fullest extent permitted under or authorized by the North Carolina
Business Corporation Act, any modification of law, shall eliminate or reduce the
effect of the rights to advancement of expenses and indemnification in respect
of any acts or omissions occurring prior to such amendment, repeal, adoption or
modification without the affected individuals’ express written
consent.
ARTICLE V.
OFFICERS
SECTION 1. TITLES. The officers of the corporation may consist of the Chairman of the Board of Directors, Vice Chairmen, the President, and such Vice Presidents as shall be elected as officers by the Board of Directors. There shall also be a Secretary, Treasurer, Controller and such assistants thereto as may be elected by the Board of Directors. Any one
12
person
may hold one or more offices in the corporation. No officer may act in more than
one capacity where action of two or more is required.
SECTION
2. ELECTION AND TERM
OF OFFICE. The officers of the corporation shall be elected annually by
the Board of Directors at the first meeting of the Board held after each annual
meeting of the shareholders, or at any other meeting of said Board. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Each officer 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 shall have been removed in the
manner hereinafter provided.
SECTION 3. REMOVAL. Since officers serve at the pleasure of the Board, any officer may be removed at any time by the Board of Directors, with or without cause. Termination of an officer’s employment with the corporation by the appropriate official (and with the review and concurrence by the Audit Committee in the case of the Vice President of Internal Audit) shall also end his term as an officer.
SECTION
4. CHAIRMAN OF THE
BOARD OF DIRECTORS. There shall be a Chairman of the Board of Directors
elected by the directors from their members. The Chairman shall preside at
meetings of the Board of Directors, shall be the Chief Executive Officer of the
corporation, and shall have direct supervision and control of all of the
business affairs of the corporation, subject to the general supervision and
control of the Board of Directors. The Chairman shall have power to sign
certificates for shares of the corporation and any deeds, mortgages, bonds,
contracts, or any other instruments or documents which may be lawfully executed
on behalf of the corporation. The Chairman shall vote as agent for the
corporation the capital stock held or owned by the corporation in any
corporation. The Chairman is authorized to delegate the authority to vote
capital stock held or owned by the corporation and to execute and deliver
agreements and other instruments to other officers of the
corporation.
SECTION
5. VICE CHAIRMEN OF
THE BOARD OF DIRECTORS. The Board of Directors may elect one or more Vice
Chairmen from their members. A Vice Chairman shall preside at meetings of the
Board of Directors in the absence of the Chairman.
SECTION
6. PRESIDENT.
The President shall perform such duties and have such responsibilities as are
assigned by the Board of Directors or the Chief Executive Officer.
SECTION
7. VICE
PRESIDENTS. The Vice Presidents shall perform such duties and have such
responsibilities as are assigned by the Board of Directors or the Chief
Executive Officer.
SECTION
8. SECRETARY.
The Secretary shall perform such duties and have such responsibilities as are
assigned by the Board of Directors or the Chief Executive Officer.
SECTION
9. TREASURER.
The Treasurer shall perform such duties and have such responsibilities as are
assigned by the Board of Directors or the Chief Executive Officer.
13
SECTION
10. CONTROLLER.
The Controller shall perform such duties and have such responsibilities as are
assigned by the Board of Directors or the Chief Executive Officer.
ARTICLE VI. DEPARTMENTAL
DESIGNATIONS
SECTION
1. DEPARTMENTAL
DESIGNATIONS. The Chief Executive Officer may establish such departmental
or functional designations or titles pertaining to supervisory personnel as the
Chief Executive Officer in his discretion deems wise. The designations or titles
may be that of Senior Vice President, Vice President or such other term or terms
as the Chief Executive Officer desires to utilize. The designation or title
contemplated by this Section 1 is for the purpose of administration within the
department or function concerned and is not with the intent of designating those
individuals bearing such titles as general officers of the corporation. These
individuals bearing these titles shall be known as administrative managers of
the corporation.
ARTICLE VII. CERTIFICATES
FOR SHARES AND THEIR TRANSFER
SECTION
1. CERTIFICATES FOR
SHARES; NON-CERTIFICATED SHARES.
(a) Certificates
representing shares of the corporation shall be in such form as shall be
determined by the Board of Directors. Such certificates shall be signed by the
Chairman of the Board and by the Secretary, provided that where a certificate is
signed by a transfer agent, assistant transfer agent or co-transfer agent of the
corporation or with the duly designated transfer agent the signatures of such
officers of the corporation upon the certificate may be facsimile engraved or
printed. Each certificate shall be sealed with the seal of the corporation or a
facsimile thereof. All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and class and date of
issue, shall be entered on the stock transfer books of the corporation, as the
transfer agent. All certificates surrendered to the corporation for transfer
shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except that in case of a lost, destroyed, or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the corporation
as the Board of Directors may prescribe.
(b) The
Board of Directors may authorize the issuance of some or all of the shares of
any or all of the corporation’s classes or series of stock without certificates.
Such authorization shall not affect shares already represented by certificates
until such shares are surrendered to the corporation. Within a reasonable time
after the issuance or transfer of shares without certificates, the corporation
shall send the shareholder a written statement with information required on
certificates by North Carolina General Statutes 55-6-25(b) and (c), and, if
applicable, North Carolina General Statutes 55-6-27, or any successor
law.
SECTION
2. TRANSFER OF
SHARES. Transfer of shares of the corporation shall be made only on the
stock transfer books of the corporation by the holder of records thereof or by
his legal representative, who shall furnish proper evidence of authority to
transfer, or by
14
his
attorney thereunto authorized by power of attorney duly executed and filed with
the secretary of the corporation, and on surrender for cancellation of the
certificate for such shares. The person in whose name shares stand on the books
of the corporation shall be deemed by the corporation to be the owner thereof
for all purposes. Transfer of shares not represented by certificates shall be
made upon receipt of proper transfer instructions from the registered holder of
the shares or by his attorney thereunto authorized by power of attorney duly
executed and filed with the secretary of the corporation and in accordance with
requirements with respect to transfer of securities not represented by
certificates as appear in Article 8 of the Uniform Commercial Code as in effect
from time to time in North Carolina.
SECTION
3. LOST
CERTIFICATES. The Board of Directors may authorize the issuance of a new
certificate in place of a certificate claimed to have been lost or destroyed,
upon receipt of an affidavit of such fact from the person claiming the loss or
destruction. In
authorizing
such issuance of a new certificate, the Board may require the claimant to give
the corporation a bond in such sum as it may direct to indemnify the corporation
against loss from any claim with respect to the certificate claimed to have been
lost or destroyed; or the Board, by resolution reciting that the circumstances
justify such action, may authorize the issuance of the new certificate without
requiring such a bond. This function or duty on the part of the Board may be
assigned by the Board to the transfer agents of the common stock of the
corporation.
ARTICLE VIII. FISCAL
YEAR
The
fiscal year of the corporation shall end on the Friday nearest to January 31 of
each year. The fiscal year shall consist of four quarterly periods, each
comprising 13 weeks, with the 13-week periods divided into three periods of four
weeks, five weeks, and four weeks. Periodically, the fiscal year shall be a
53-week year, with the fourth period comprising four weeks, five weeks, and five
weeks, in order to account for the 365th day
of each year and the 29th day
of February in a leap year.
ARTICLE IX.
DIVIDENDS
The Board
of Directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and as provided in a resolution of the Board of
Directors.
ARTICLE X.
SEAL
The Board
of Directors shall provide a corporate seal which shall be circular in form and
shall have inscribed thereon the name of the corporation, the state of
incorporation, and the word “Seal”.
15
ARTICLE XI. WAIVER OF
NOTICE
Whenever
any notice is required to be given to any shareholder or director of the
corporation under the provisions of the charter or under the provisions of
applicable law, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
ARTICLE XII.
AMENDMENTS
Unless
otherwise prescribed by law or the charter, these Bylaws may be amended or
altered at any meeting of the Board of Directors by affirmative vote of a
majority of the directors. Unless otherwise prescribed by
law or the charter, the shareholders entitled to vote in respect of the election
of directors, however, shall have the power to rescind, amend, alter or repeal
any Bylaws and to enact Bylaws which, if expressly so provided, may not be
amended, altered or repealed by the Board of Directors.
16