BYLAWS
OF
DELHAIZE AMERICA, INC.
May 4, 2000
BYLAWS
OF
DELHAIZE AMERICA, INC.
ARTICLE 1
Offices
Section 1. Principal and Registered Office. The principal
office of the corporation shall be located at 2110 Executive Drive,
Salisbury, North Carolina, which shall also be the registered office
of the corporation.
Section 2. Other Offices. The corporation may have offices
at such other places, either within or without the State of North
Carolina, as the board of directors may from time to time determine.
ARTICLE 2
Meetings of Shareholders
Section 1. Place of Meeting. Meetings of shareholders
shall be held at the principal office of the corporation, or at such
other place, either within or without the State of North Carolina, as
shall be designated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of
shareholders shall be held on such date and at such time during the
month of May of each year as shall be set by the board of directors,
for the purpose of electing directors of the corporation and the
transaction of such other business as may be properly brought before
the meeting.
Section 3. Substitute Annual Meeting. If the annual
meeting is not held on the day designated by these bylaws, a
substitute annual meeting may be called in accordance with Section 4
of this Article. A meeting so called shall be designated and treated
for all purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the
shareholders may be called at any time by the president and chief
executive officer or by any two members of the board of directors.
Section 5. Notice of Meetings. At least 10 days and no
more than 60 days prior to any annual or special meeting of the
shareholders, the corporation shall notify shareholders of the date,
time and place of the meeting and, in the case of a special or
substitute annual meeting or where otherwise required by law, shall
briefly describe the purpose or purposes of the meeting. Only
business within the purpose or purposes described in the notice may be
conducted at a special meeting. Unless otherwise required by the
articles of incorporation or by law (for example, in the event of a
meeting to consider the adoption of a plan of merger or share
exchange, a sale of assets other than in the ordinary course of
business or a voluntary dissolution), the corporation shall be
required to give notice only to shareholders entitled to vote at the
meeting. If an annual or special shareholder's meeting is adjourned
to a different date, time or place, notice thereof need not be given
if the new date, time or place is announced at the meeting before
adjournment. If a new record date for the adjourned meeting is fixed
pursuant to Article 7, Section 5 hereof, notice of the adjourned
meeting shall be given to persons who are shareholders as of the new
record date. It shall be the primary responsibility of the secretary
to give the notice, but notice may be given by or at the direction of
the president and chief executive officer or other person or persons
calling the meeting. If mailed, such notice shall be deemed to be
effective when deposited in the United States mail with postage
thereon prepaid, correctly addressed to the shareholder's address
shown in the corporation's current record of shareholders.
Section 6. Advance Notice of Shareholder Proposals. No
business shall be transacted at a meeting of shareholders, except such
business as shall be (a) specified in the notice of meeting given as
provided in Section 5 of this Article 2, (b) otherwise brought before
the meeting by or at the direction of the board of directors, 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 6. For business to be brought before a meeting
by a shareholder pursuant to (c) above, the shareholder must have
given timely notice in writing to the Secretary. To be timely, a
shareholder's notice must be delivered to, or mailed to and received
by, the Secretary of the corporation not less than 10 days nor more
than 60 days prior to the meeting; provided, however, that if fewer
than 21 days' notice of the meeting is given to shareholders, such
written notice shall be received not later than the close of the tenth
day following the date on which notice of the meeting was mailed to
shareholders. Notwithstanding the foregoing, any shareholder who
wishes the board of directors to consider taking a position with
respect to the matter must deliver such notice to, or mail it so that
it is received by, the Secretary of the corporation not less than 90
nor more than 150 days prior to the meeting. Nothing in this Section
6 shall require the board of directors to recommend for adoption by
the shareholders, or give the shareholders notice of, any matter of
which notice is provided to the corporation pursuant to this Section
or otherwise. Notice of actions to be brought before the meeting
pursuant to (c) 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,
(ii) the name and address, as they appear on the corporation's books,
of each shareholder proposing such business, and (iii) the classes and
number of shares of the corporation that are owned of record and
beneficially by such shareholder of the corporation. Notwithstanding
anything in these bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the provisions set
forth in this Section 6, except as otherwise may be required by law.
Nothing in this Section 6 shall be deemed to restrict, expand or
otherwise affect any rights or obligations of any party under Rule 14a-
8 of the Securities and Exchange Commission or any successor provision
to such rule. If the chairman of the meeting determines that any
business was not properly brought before the meeting in accordance
with provisions prescribed by these bylaws, he shall so declare to the
meeting, and to the extent permitted by law any such business not
properly brought before the meeting shall not be transacted.
Section 7. Quorum. A majority of the votes entitled to be
cast by a voting group on a matter, represented in person or by proxy
at a meeting of shareholders, shall constitute a quorum for that
voting group for any action on that matter, unless quorum requirements
are otherwise fixed by a court of competent jurisdiction acting
pursuant to Section 55-7-03 of the General Statutes of North Carolina.
Once a share is represented for any purpose at a meeting, it shall be
deemed present for quorum purposes for the remainder of the meeting
and any adjournment thereof, unless a new record date is or must be
set for the adjournment. Action may be taken by a voting group at
any meeting at which a quorum of that voting group is represented,
regardless of whether action is taken at that meeting by any other
voting group. In the absence of a quorum at the opening of any
meeting of shareholders, such meeting may be adjourned from time to
time by a vote of the majority of the shares voting on the motion to
adjourn.
Section 8. Shareholders' List. After a record date is
fixed for a meeting, the secretary of the corporation shall prepare an
alphabetical list of the names of all its shareholders who are
entitled to notice of the shareholders' meeting. Such list shall be
arranged by voting group (and within each voting group by class or
series of shares) and shall show the address of and number of shares
held by each shareholder. The shareholder's list shall be made
available for inspection by any shareholder, beginning two business
days after notice of the meeting is given for which the list was
prepared and continuing through the meeting, at the corporation's
principal office or at such other place identified in the meeting
notice and the city where the meeting will be held. The corporation
shall make the shareholders' list available at the meeting, and any
shareholder or his agent or attorney is entitled to inspect the list
at any time during the meeting or any adjournment thereof.
Section 9. Voting of Shares. Except as otherwise provided
by the articles of incorporation, each outstanding share of voting
capital stock of the corporation shall be entitled to one vote on each
matter submitted to a vote at a meeting of the shareholders. 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, unless the vote of a
greater number is required by law or by the articles of incorporation.
Voting on all 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 a particular matter. Absent
special circumstances, the shares of the corporation are not entitled
to vote if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the corporation owns, directly
or indirectly, a majority of the shares entitled to vote for directors
of the second corporation, except that this provision shall not limit
the power of the corporation to vote shares held by it in a fiduciary
capacity.
Section 10. Proxies. Shares may be voted either in person
or by a proxy who has been appointed by the shareholder by signing an
appointment form, either personally or by his duly authorized attorney-
in-fact. An appointment of proxy is effective when received by the
secretary or other officer or agent authorized to tabulate votes. An
appointment of proxy is valid for 11 months unless a different period
is expressly provided in the appointment form.
Section 11. Action Without Meeting. Any action which the
shareholders could take at a meeting may be taken without a meeting if
one or more written consents, setting forth the action taken, shall be
signed, before or after such action, by all the shareholders who would
be entitled to vote upon the action at a meeting. The consent shall
be delivered to the corporation for inclusion in the minutes or filing
with the corporate records. The corporation must give its nonvoting
shareholders written notice of the proposed action at least 10 days
before the action is taken, which notice must contain or be
accompanied by the same material that would have been required by law
to be sent to nonvoting shareholders in a notice of meeting at which
the proposed action would have been submitted to the shareholders for
action.
ARTICLE 3
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed under the direction of the board of
directors except as otherwise provided by the articles of
incorporation or by a valid shareholders' agreement.
Section 2. Number, Term and Qualification. The number of
directors of the corporation shall be not less than eight persons nor
more than 14 persons, with the exact number of directors within the
minimum and maximum to be established from time to time by the
shareholders or, unless the articles of incorporation or a valid
shareholders' agreement provides otherwise, the board of directors;
but, in the absence of such action, the number of directors elected at
the annual meeting shall constitute the number of directors of the
corporation until the next annual meeting of shareholders, unless the
number is previously changed by action of the shareholders or the
board of directors. Only shareholders may change the range for the
size of the board of directors or change from a variable range to a
fixed size board of directors. Each director shall hold office until
the next annual meeting of the shareholders and until his successor is
elected and qualifies, until there is a decrease in the number of
directors or until his earlier death, resignation, removal or
disqualification. Directors need not be residents of the State of
North Carolina or shareholders of the corporation unless the articles
of incorporation so provide. No person after having attained the age
of 70 years shall be allowed to run for election, reelection or re-
appointment to the board of directors, excepting, however, that such
retirement age shall not apply to directors over the age of 65 years
who were serving on such board on July 3, 1997.
Section 3. 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 directors at the annual or special
meeting of shareholders. Nomination for election to the board of
directors shall be made or approved by the board of directors.
In addition, nomination for election of any person to the
board of directors may be made by a shareholder if written notice of
the nomination of such person shall have been delivered to the
Secretary of the corporation at the principal office of the
corporation not less than 10 days nor more than 60 days prior to any
meeting of the shareholders called for the election of directors;
provided, however, that if fewer than 21 days' notice of the meeting
is given to shareholders, such written notice shall be received not
later than the close of the tenth day following the day on which
notice of the meeting was mailed to shareholders. Notwithstanding the
foregoing, any shareholder who wishes the board of directors or a duly
authorized committee of the board of directors to consider nominating
for election to the board of directors a person recommended by a
shareholder must deliver such notice to, or mail it so that it is
received by, the Secretary of the corporation not less than 90 nor
more than 150 days prior to the meeting. Any notice provided pursuant
to this Section shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is
a holder of record of shares of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c)
a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission if the
nominee had been nominated by the board of directors; and (e) the
written consent of each nominee to serve as a director of the
corporation if so elected. Nothing in this Section shall require the
board of directors to nominate or approve, as one of its nominees, any
person recommended to be so nominated by a shareholder or to give the
shareholders notice of any proposed nomination by a shareholder. The
chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
Section 4. Election. Except as provided in Section 6 of
this Article 3 (Vacancies), the directors shall be elected at the
annual meeting of shareholders. Those persons who receive the highest
number of votes at a meeting at which a quorum is present shall be
deemed to have been elected.
Section 5. Removal. Directors may be removed from office
with or without cause (unless the articles of incorporation provide
that directors may be removed only for cause), provided the notice of
the shareholders' meeting at which such action is to be taken states
that a purpose of the meeting is removal of the director and the
number of votes cast to remove the director exceeds the number of
votes cast not to remove him.
Section 6. Vacancies. Except as otherwise provided in the
articles of incorporation, a vacancy occurring in the board of
directors, including, without limitation, a vacancy resulting from an
increase in the number of directors or from the failure by the
shareholders to elect the full authorized number of directors, shall
be filled by an affirmative vote of at least 70% of the remaining
directors in favor of a nominee selected by the Nominating Committee
of the board of directors, in accordance with the procedures set forth
in Article 5, Section 2, below. The shareholders may elect a director
at any time to fill a vacancy not filled by the directors. A director
elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 7. Compensation. The board of directors may
compensate directors for their services as such and may provide for
the payment of any or all expenses incurred by directors in attending
regular and special meetings of the board of directors.
ARTICLE 4
Meetings of Directors
Section 1. Annual and Regular Meetings. The annual meeting
of the board of directors shall be held immediately following the
annual meeting of the shareholders. The board of directors may by
resolution provide for the holding of regular meetings of the board on
specified dates and at specified times. Notice of regular meetings
held at the principal office of the corporation and at the usual
scheduled time shall not be required. If any date for which a regular
meeting is scheduled shall be a legal holiday, the meeting shall be
held on a date designated in the notice of the meeting, if any, during
either the same week in which the regularly scheduled date falls or
during the preceding or following week. Regular meetings of the board
shall be held at the principal office of the corporation or at such
other place as may be designated in the notice of the meeting.
Section 2. Special Meetings. Special meetings of the board
of directors may be called by or at the request of the chairman of the
board, the president and chief executive officer or any two directors.
Such meetings may be held at the time and place designated in the
notice of the meeting.
Section 3. Notice of Meetings. Unless the articles of
incorporation provide otherwise, the annual and regular meetings of
the board of directors may be held without notice of the date, time or
place. However, the president and chief executive officer or
secretary shall provide each director with a written agenda of the
items to be discussed at such meetings at least seven days prior
thereto. Any person or persons calling a special meeting shall give
notice by any usual means of communication to be sent at least seven
days before the meeting if notice is sent by means of telephone,
telecopy or personal delivery and at least ten days before the meeting
if notice is sent by mail. A director's attendance at, or
participation in, a meeting for which notice is required shall
constitute a waiver of notice, unless the director at the beginning of
the meeting (or promptly upon arrival) objects to holding the meeting
or transacting business at the meeting and does not thereafter vote or
assent to action taken at the meeting.
Section 4. Quorum. Except as otherwise provided in the
articles of incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business at a meeting of
the board of directors.
Section 5. Manner of Acting. Except as otherwise provided
in the articles of incorporation or these bylaws, 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.
Section 6. Special Vote. The board of directors may not,
without an affirmative vote of at least 70% of the number of directors
fixed pursuant to these bylaws ("Special Vote"), be empowered to
authorize the corporation to:
(a) Approve the nomination of any person or persons
for election to the board of directors or elect a chief executive
officer;
(b) Authorize any contract involving payment by the
corporation of cash or property valued in excess of $500,000,
including, without limitation, the purchase, sale or leasing of
property or the incurring of indebtedness, except transactions
relating to the leasing or construction of stores, warehouses and
related facilities or any other transaction in the ordinary
course of business;
(c) Approve or authorize capital expenditures of more
than $500,000 in any one instance or $1,000,000 in the aggregate
in any fiscal year, except expenditures relating to the leasing
or construction of stores, warehouses and related facilities or
any other transaction in the ordinary course of business;
(d) Authorize the issuance or sale of stock or other
securities of the corporation or any subsidiary of the
corporation, or options or warrants or obligations convertible
into such stock or securities, except the issuance of stock
options or stock or both, as the case may be, pursuant to the
corporation's 1996 Employee Stock Option Plan, Employee Stock
Purchase Plan and Employee Stock Ownership Plan and other
employee benefit plans approved by the board of directors;
(e) Sell or otherwise dispose of a substantial part of
the corporation's assets other than in the ordinary course of
business;
(f) Amend the charter or the bylaws of the
corporation; or
(g) Approve for submission to the shareholders of the
corporation for their approval a proposal for the amendment of
the corporation's charter or the merger or consolidation of the
corporation with or into any other corporation or the
reorganization, recapitalization or liquidation of the
corporation;
Any Special Vote approving any such action may specify
other limitations which shall not be exceeded without a further
Special Vote.
Section 7. 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 is deemed to have
assented to the action taken unless he objects at the beginning of the
meeting (or promptly upon arrival) to holding, or transacting business
at, the meeting, or unless his dissent or abstention is entered in the
minutes of the meeting or unless he shall file written notice of his
dissent or abstention to such action with the presiding officer of the
meeting before its adjournment or with the corporation immediately
after adjournment of the meeting. The right of dissent or abstention
shall not apply to a director who voted in favor of such action.
Section 8. Action Without Meeting. Unless otherwise
provided in the articles of incorporation, action required or
permitted to be taken at a meeting of the board of directors may be
taken without a meeting if the action is taken by all members of the
board. The action must be evidenced by one or more written consents
signed by each director before or after such action, describing the
action taken, and included in the minutes or filed with the corporate
records. Action taken without a meeting is effective when the last
director signs the consent, unless the consent specifies a different
effective date.
Section 9. Meeting by Communications Device. Unless
otherwise provided in the articles of incorporation, the board of
directors may permit any or all directors to participate in a regular
or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in
person at the meeting.
Section 10. Minutes of Meeting of the Board of Directors.
Minutes of all meetings of the board of directors shall be furnished
to all directors promptly after such meeting.
ARTICLE 5
Committees
Section 1. General. The board of directors may create, by
the affirmative vote of at least 70 % of the number of directors then
serving, one or more committees not otherwise provided for by these
bylaws. Such committees shall consist of two or more directors
appointed and removable by the affirmative vote of at least 70% of the
number of directors then serving. Such committees may meet at stated
times, or on notice to all by any of their own number. The board of
directors may by resolution provide that during intervals between
meetings of the board of directors, the committees shall have and may
exercise the powers of the board in the management of the business and
affairs of the corporation, except that the committees shall not have
authority to:
(a) Authorize distributions;
(b) Approve or propose to shareholders
action required to be approved by shareholders;
(c) Fill vacancies on the board of
directors or on any of its committees;
(d) Amend the articles of incorporation;
(e) Adopt, amend or repeal the bylaws;
(f) Approve a plan or merger not
requiring shareholder approval;
(g) Authorize or approve reacquisition
of shares, except according to a formula or method
prescribed by the board of directors; or
(h) Authorize or approve the issuance,
sale or contract for sale of shares, or determine
the designation and relative rights, preferences
and limitations of a class or series of shares,
except that the board of directors may authorize a
committee (or a senior executive officer of the
corporation) to do so within limits specifically
prescribed by the board of directors.
Section 2. Nominating Committee. There shall be a
Nominating Committee of the board of directors, which shall consist of
three directors, one of whom shall be designated by Etablissements
Delhaize Freres et Cie "Le Lion" S.A. ("Delhaize") and/or Delhaize the
Lion America, Inc., one of whom shall be the Chief Executive Officer
of the Company or his designee from among the members of the board of
directors of the Company, and one of whom shall be an independent
director. The Nominating Committee shall propose to the board of
directors (a) the slate of directors to be submitted to the
shareholders for election at the annual meeting of shareholders or at
any meeting of the shareholders at which a director or directors are
to be elected, and (b) persons to fill any vacancies that may arise
from time to time on the board of directors.
The slate of directors proposed by the Nominating Committee
shall consist of ten persons, four of whom shall be proposed by the
Chief Executive Officer of Delhaize (the "Delhaize Designees"), two of
whom shall be proposed by the Chief Executive Officer of the Company
or his representative on the Nominating Committee (the "CEO
Designees") and four of whom shall be independent directors. In the
event of a vacancy on the board of directors, the Nominating Committee
shall propose to the board of directors an appropriate person to fill
such vacancy such that the foregoing ratio of Delhaize Designees, CEO
Designees and independent directors is regained. Thus, if a Delhaize
Designee ceases to be a director, the vacancy left thereby shall be
filled by a new Delhaize Designee, if a CEO Designee ceases to be a
director, the vacancy left thereby shall be filled by a new CEO
Designee, and if an independent director ceases to be a director, the
vacancy left thereby shall be filled by a new independent director.
The Nominating Committee shall recommend its slate of
directors or any individual nominee to the board of directors of the
Company, which shall approve such nominations by Special Vote. If the
board of directors does not approve a slate of directors or any
individual nominee proposed by the Nominating Committee, the
Nominating Committee shall meet to propose another slate of directors
or nominee acceptable to the board of directors.
The Nominating Committee shall meet at least (a) annually,
prior to the annual meeting of shareholders, (b) prior to any special
meeting of shareholders called for the purpose of electing one or more
directors, (c) within thirty days' notice of any vacancy occurring on
the board of directors, and (d) at any time that it is determined that
the composition of the Company's board of directors does not comply
with any laws or rules that apply to the Company, including the rules
of the National Association of Securities Dealers or any national
securities exchange on which the Company's securities are listed.
Meetings of the Nominating Committee shall be held at such place as is
fixed by the chairman thereof in the notice of the meeting. The
provisions of Article 4 governing action without a meeting, notice,
waiver of notice and quorum requirements shall apply to the Nominating
Committee. All decisions of the Nominating Committee shall require
the affirmative vote of at least two members.
Section 3. Meetings. Except as otherwise provided in these
bylaws, the provisions of Article 4 governing meetings of the board of
directors, action without meeting, notice, waiver of notice,
presumption of assent and quorum and voting requirements shall apply
to the committees of the board and its members.
Section 4. Minutes. The committees shall keep minutes of
their proceedings and documentation of their decisions and shall
transmit copies thereof and report thereon to the board of directors
at or before the next meeting of the board.
ARTICLE 6
Officers
Section 1. Titles. The officers of the corporation shall
be a chairman of the board, a president and chief executive officer, a
secretary and a treasurer. The board of directors or the president
and chief executive officer (if authorized by the board) may appoint
one or more vice presidents, one or more assistant secretaries, one or
more assistant treasurers and such other officers as shall be deemed
necessary. The additional officers shall have the authority and
perform the duties as from time to time may be prescribed by the board
of directors or by direction of the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers). Any two or more offices may
be held by the same individual, but no officer may act in more than
one capacity where action of two or more officers is required.
Section 2. Election; Appointment. The officers of the
corporation shall be elected from time to time by the board of
directors or appointed from time to time by the president and chief
executive officer (to the extent that the president and chief
executive officer is authorized by the board to appoint officers).
Section 3. Removal. Any officer may be removed by the
board at any time with or without cause whenever in its judgment the
best interests of the corporation will be served, but removal shall
not itself affect the officer's contract rights, if any, with the
corporation.
Section 4. Vacancies. Vacancies among the officers may be
filled and new officers may be created and filled by the board of
directors, or by the president and chief executive officer (to the
extent authorized by the board).
Section 5. Compensation. Except as otherwise provided in
these bylaws, the compensation of the officers shall be fixed by the
board of directors.
Section 6. Chairman and Vice Chairman of the Board of
Directors. The chairman of the board of directors shall preside at
meetings of the shareholders and the board of directors and shall have
such other authority and perform such other duties as the board of
directors shall designate. The vice chairman, if elected, shall
preside at meetings of the board in the absence of the chairman and
shall have such other authority and perform such other duties as the
board of directors shall designate.
Section 7. President and Chief Executive Officer. In the
absence of the chairman of the board, the president and chief
executive officer shall preside at all meetings of the shareholders
and the board of directors. Subject to the board of directors, he
shall be the principal executive officer of the corporation and shall
have general charge of the business of the corporation; he shall keep
the board of directors fully informed of the business of the
corporation; he may sign and execute all authorized bonds, contracts,
or other obligations in the name of, and on behalf of, the
corporation, and with the secretary or assistant secretary, if one be
elected, may sign all certificates of stock, and without further
authorization than these presents, may sign all checks or drafts upon
funds of this corporation, in its name and on its behalf, and any bank
or depository in which funds of the corporation shall be deposited
shall be fully and conclusively protected in honoring any checks or
drafts on behalf of this corporation, signed by the president and
chief executive officer. Subject to the limitations of Section 6(e)
of Article 4 of these bylaws, he shall have the power to fix the
salaries of all other officers, agents and employees of the
corporation, except the chairman and vice presidents (including senior
vice presidents, if any); and shall have the power to employ and
discharge all agents and employees of the corporation, subject to the
control of the board of directors, except the chairman and vice
presidents. He shall generally conduct the affairs of the corporation
and shall do and perform such other duties as, from time to time, may
be assigned to him by the board of directors or by these bylaws.
Section 8. Vice Presidents. The vice presidents shall
perform such duties as from time to time may be assigned to them by
the chairman of the board or the president and chief executive
officer, the board of directors or by these bylaws.
Section 9. Secretary. The secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and of the board of directors and shall give all notices required by
law and by these bylaws. The secretary shall have general charge of
the corporate books and records and shall have the responsibility and
authority to maintain and authenticate such books and records. The
secretary shall have general charge of the corporate seal and shall
affix the corporate seal to any lawfully executed instrument requiring
it. The secretary shall have general charge of the stock transfer
books of the corporation and shall keep at the principal office of the
corporation a record of shareholders, showing the name and address of
each shareholder and the number and class of shares held by each. The
secretary shall sign such instruments as may require the signature of
the secretary, and in general shall perform the duties incident to the
office of secretary and such other duties as may be assigned from time
to time by the board of directors or the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers).
Section 10. Assistant Secretaries. Each assistant
secretary shall have such powers and perform such duties as may be
assigned by the board of directors or the president and chief
executive officer (if authorized by the board of directors to
prescribe the authority and duties of other officers), and the
assistant secretaries shall exercise the powers of the secretary
during that officer's absence or inability to act.
Section 11. Treasurer. The treasurer shall have custody of
all funds and securities belonging to the corporation and shall
receive, deposit or disburse the same under the direction of the board
of directors. The treasurer shall keep full and accurate accounts of
the finances of the corporation and shall cause a true statement of
the assets and liabilities of the corporation as of the close of each
fiscal year and of the results of its operations and of changes in
surplus, all in reasonable detail, to be made and filed at the
principal office of the corporation within four months after the end
of the fiscal year. The statement shall be available for inspection
by any shareholder for a period of ten years, and the treasurer shall
mail or otherwise deliver a copy of the latest statement to any
shareholder upon written request. The treasurer shall in general
perform all duties incident to the office and such other duties as may
be assigned from time to time by the board of directors or the
president and chief executive officer (if authorized by the board of
directors to prescribe the authority and duties of other officers).
Section 12. Assistant Treasurers. Each assistant treasurer
shall have such powers and perform such duties as may be assigned by
the board of directors or the president and chief executive officer
(if authorized by the board of directors to prescribe the authority
and duties of other officers), and the assistant treasurers shall
exercise the powers of the treasurer during that officer's absence or
inability to act.
Section 13. Voting Upon Stocks. Unless otherwise ordered
by the board of directors, the president and chief executive officer
shall have full power and authority in behalf of the corporation to
attend, act and vote at meetings of the shareholders of any
corporation in which this corporation may hold stock, and at such
meetings shall possess and may exercise any and all rights and powers
incident to the ownership of such stock and which, as the owner, the
corporation might have possessed and exercised if present. The board
of directors may by resolution from time to time confer such power and
authority upon any other person or persons.
ARTICLE 7
Capital Stock
Section 1. Certificates. Shares of the capital stock of
the corporation shall be represented by certificates. The name and
address of the persons to whom shares of capital stock of the
corporation are issued, with the number of shares and date of issue,
shall be entered on the stock transfer records of the corporation.
Certificates for shares of the capital stock of the corporation shall
be in such form not inconsistent with the articles of incorporation of
the corporation as shall be approved by the board of directors. Each
certificate shall be signed (either manually or by facsimile) by (a)
the president and chief executive officer or any vice president and by
the secretary, assistant secretary, treasurer or assistant treasurer
or (b) any two officers designated by the board of directors. Each
certificate may be sealed with the seal of the corporation or a
facsimile thereof.
Section 2. Transfer of Shares. Transfer of shares shall be
made on the stock transfer records of the corporation, and transfers
shall be made only upon surrender of the certificate for the shares
sought to be transferred by the recordholder or by a duly authorized
agent, transferee or legal representative. All certificates
surrendered for transfer or reissue shall be canceled before new
certificates for the shares shall be issued.
Section 3. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents and one or more
registrars of transfers and may require all stock certificates to be
signed or countersigned by the transfer agent and registered by the
registrar of transfers.
Section 4. Regulations. The board of directors may make
rules and regulations as it deems expedient concerning the issue,
transfer and registration of shares of capital stock of the
corporation.
Section 5. Fixing Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any
other purpose, the board of directors may fix in advance a date as the
record date for the determination of shareholders. The record date
shall not be more than 70 days before the meeting or action requiring
a determination of shareholders. A determination of shareholders
entitled to notice of or to vote at the shareholders' meeting shall be
effective for any adjournment of the meeting unless the board of
directors fixes a new record date, which it shall do if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting. If no record date is fixed for the determination of
shareholders, the record date shall be the day the notice of the
meeting is mailed or the day the action requiring a determination of
shareholders is taken. If no record date is fixed for action without
a meeting, the record date for determining shareholders entitled to
take action without a meeting shall be the date the first shareholder
signs a consent to the action taken.
Section 6. Lost Certificates. The board of directors must
authorize the issuance of a new certificate in place of a certificate
claimed to have been lost, destroyed or wrongfully taken, upon receipt
of (a) an affidavit from the person explaining the loss, destruction
or wrongful taking, and (b) a bond from the claimant in a sum as the
corporation may reasonably direct to indemnify the corporation against
loss from any claim with respect to the certificate claimed to have
been lost, destroyed or wrongfully taken. The board of directors may,
in its discretion, waive the affidavit and bond and authorize the
issuance of a new certificate in place of a certificate claimed to
have been lost, destroyed or wrongfully taken.
ARTICLE 8
Indemnification of Officers and Directors
Section 1. Indemnification Provisions. Any person who at
any time serves or has served as a director or officer of the
corporation or of any wholly owned subsidiary of the corporation, or
in such capacity at the request of the corporation for any other
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or as a trustee or administrator under any employee
benefit plan of the corporation or of any wholly owned subsidiary
thereof (a "Claimant"), shall have the right to be indemnified and
held harmless by the corporation to the fullest extent from time to
time permitted by law against all liabilities and litigation expenses
(as hereinafter defined) in the event a claim shall be made or
threatened against that person in, or that person is made or
threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the
corporation, including all appeals therefrom (a "proceeding"), arising
out of that person's status as such or that person's activities in any
such capacity; provided, that such indemnification shall not be
effective with respect to (a) that portion of any liabilities or
litigation expenses with respect to which the Claimant is entitled to
receive payment under any insurance policy or (b) any liabilities or
litigation expenses incurred on account of any of the Claimant's
activities which were at the time taken known or believed by the
Claimant to be clearly in conflict with the best interests of the
corporation.
Section 2. Definitions. As used in this Article, (a)
"liabilities" shall include, without limitation, (1) payments in
satisfaction of any judgment, money decree, excise tax, fine or
penalty for which the Claimant had become liable in any proceeding and
(2) payments in settlement of any such proceeding subject, however, to
Section 3 of this Article 8; (b) "litigation expenses" shall include,
without limitation, (1) reasonable costs and expenses and attorneys'
fees and expenses actually incurred by the Claimant in connection with
any proceeding and (2) reasonable costs and expenses and attorneys'
fees and expenses in connection with the enforcement of rights to the
indemnification granted hereby or by applicable law, if such
enforcement is successful in whole or in part; and (c) "disinterested
directors" shall mean directors who are not party to the proceeding in
question.
Section 3. Settlements. The corporation shall not be
liable to indemnify the Claimant for any amounts paid in settlement of
any proceeding effected without the corporation's written consent.
The corporation will not unreasonably withhold its consent to any
proposed settlement.
Section 4. Litigation Expense Advances.
(a) Except as provided in subsection (b) below, any
litigation expenses shall be advanced to any Claimant within 30 days
of receipt by the secretary of the corporation of a demand therefor,
together with an undertaking by or on behalf of the Claimant to repay
to the corporation such amount unless it is ultimately determined that
Claimant is entitled to be indemnified by the corporation against such
expenses. The secretary shall promptly forward notice of the demand
and undertaking immediately to all directors of the corporation.
(b) Within 10 days after mailing of notice to the directors
pursuant to subsection (a) above, any disinterested director may, if
desired, call a meeting of all disinterested directors to review the
reasonableness of the expenses so requested. No advance shall be made
if a majority of the disinterested directors affirmatively determines
that the item of expense is unreasonable in amount; but if the
disinterested directors determine that a portion of the expense item
is reasonable, the corporation shall advance such portion.
Section 5. Approval of Indemnification Payments. Except as
provided in Section 4 of this Article, the board of directors of the
corporation shall take all such action as may be necessary and
appropriate to authorize the corporation to pay the indemnification
required by Section 1 of this Article, including, without limitation,
making a good faith evaluation of the manner in which the Claimant
acted and of the reasonable amount of indemnity due the Claimant. In
taking any such action, any Claimant who is a director of the
corporation shall not be entitled to vote on any matter concerning
such Claimant's right to indemnification.
Section 6. Suits by Claimant. No Claimant shall be
entitled to bring suit against the corporation to enforce his rights
under this Article until sixty days after a written claim has been
received by the corporation, together with any undertaking to repay as
required by Section 4 of this Article. It shall be a defense to any
such action that the Claimant's liabilities or litigation expenses
were incurred on account of activities described in clause (b) of
Section 1, but the burden of proving this defense shall be on the
corporation. Neither the failure of the corporation to have made a
determination prior to the commencement of the action to the effect
that indemnification of the Claimant is proper in the circumstances,
nor an actual determination by the corporation that the Claimant had
not met the standard of conduct described in clause (b) of Section 1,
shall be a defense to the action or create a presumption that the
Claimant has not met the applicable standard of conduct.
Section 7. Consideration; Personal Representatives and
Other Remedies. Any person who during such time as this Article or
corresponding provisions of predecessor bylaws is or has been in
effect serves or has served in any of the aforesaid capacities for or
on behalf of the corporation, shall be deemed to be doing so or to
have done so in reliance upon, and as consideration for, the right of
indemnification provided herein or therein. The right of
indemnification provided herein or therein shall inure to the benefit
of the legal representatives of any person who qualifies or would
qualify as a Claimant hereunder, and the right shall not be exclusive
of any other rights to which the person or legal representative may be
entitled apart from this Article.
Section 8. Scope of Indemnification Rights. The rights
granted herein shall not be limited by the provisions of Section 55-8-
51 of the General Statutes of North Carolina or any successor statute.
ARTICLE 9
General Provisions
Section 1. Dividends and other Distributions. The board of
directors may from time to time declare, and the corporation may pay
or make, dividends and other distributions with respect to its
outstanding shares in the manner and upon the terms and conditions
provided by law.
Section 2. Seal. The seal of the corporation shall consist
of two concentric circles between which is the name of the corporation
and in the center of which is inscribed SEAL; and such seal as is
impressed in the margin hereof is hereby adopted as the corporate seal
of the corporation.
Section 3. Waiver of Notice. Whenever notice is required
to be given to a shareholder, director or other person under the
provisions of these bylaws, the articles of incorporation or by
applicable law, a waiver in writing signed by the person or persons
entitled to the notice, whether before or after the date and time
stated in the notice and delivered to the corporation, shall be
equivalent to giving the notice.
Section 4. Checks. All checks, drafts or orders for the
payment of money shall be signed by the officer or officers or other
individuals that the board of directors may from time to time
designate.
Section 5. Contracts. The board of directors may authorize
any officer or officers, agent or agents to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be generally or confined to
specific instances.
Section 6. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit
of the corporation in such depositories as the board of directors may
select.
Section 7. Bond. The board of directors may by resolution
require any or all officers, agents and employees of the corporation
to give bond to the corporation, with sufficient sureties, conditioned
on the faithful performance of the duties of their respective offices
or positions, and to comply with such other conditions as may from
time to time be required by the board.
Section 8. Fiscal Year. The fiscal year of the corporation
shall be fixed by the board of directors.
Section 9. Amendments. Unless otherwise provided in the
articles of incorporation or a bylaw adopted by the shareholders or by
law, these bylaws may be amended or repealed by the board of directors
in accordance with the special voting provisions contained in Article
4, Section 6, except that a bylaw adopted, amended or repealed by the
shareholders may not be readopted, amended or repealed by the board of
directors if neither the articles of incorporation nor a bylaw adopted
by the shareholders authorizes the board of directors to adopt, amend
or repeal that particular bylaw or the bylaws generally. These bylaws
may also be amended or repealed by the board of directors. A bylaw
that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders, unless such bylaw as
originally adopted by the shareholders provides that such bylaw may be
amended or repealed by the board of directors of (b) if originally
adopted by the board of directors, either by the shareholders or by
the board of directors. A bylaw that fixes a greater quorum or voting
requirement may not be adopted by the board of directors by a vote
less than a majority of the directors then in office and may not
itself be amended by a quorum or vote of the directors less than a
quorum or vote prescribed in such bylaw or prescribed by the
shareholders.
THIS IS TO CERTIFY that the above bylaws of Delhaize America,
Inc., were duly adopted by the board of directors of the corporation,
effective May 4, 1995, and amended by the board of directors of the
corporation effective July 3, 1997, and further amended by the
shareholders of the corporation effective September 7, 1999 and May 4,
2000, all by action taken at duly called meetings of the board of
directors or shareholders as required by the General Statutes of North
Carolina.
This 5th day of May, 2000.
G. Linn Evans
G. Linn Evans, Assistant Secretary
[Corporate Seal]
