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EXHIBIT 3.3
BYLAWS
OF
LANCE, INC.
(As Amended Through September 1, 2000)
ARTICLE I - OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be located at 8600 South Boulevard, Charlotte, Mecklenburg County, North
Carolina.
Section 1.2 REGISTERED OFFICE. The registered office of the Corporation
required by law to be maintained in the State of North Carolina shall be
identical with the principal office.
Section 1.3 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, or as the affairs of the
Corporation may require.
ARTICLE II - MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. All 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 by the
Board of Directors.
Section 2.2 ANNUAL MEETINGS. The annual meeting of the shareholders
shall be held each year in April at such date and time as shall be designated by
the Board of Directors of the Corporation for the purpose of electing directors
of the Corporation and for the transaction of such other business as may be
properly brought before the meeting.
Section 2.3 SUBSTITUTE ANNUAL MEETINGS. If the annual meeting shall not
be held on the day designated by these Bylaws, a substitute annual meeting may
be called in accordance with the provisions of Section 2.4. A meeting so called
shall be designated and treated for all purposes as the annual meeting.
Section 2.4 SPECIAL MEETINGS. Special meetings of the shareholders may
be called at any time by the President or by the Board of Directors of the
Corporation.
Section 2.5 NOTICE OF MEETINGS. Written or printed notice stating the
time and place of the meeting shall be delivered not less than 10 nor more than
60 days before the date thereof, either personally or by mail, at the direction
of the President, the Board of Directors, or other person calling the meeting,
to each shareholder of record entitled to vote at such meeting.
In the case of a special meeting, the notice of meeting shall specifically state
the purpose or purposes for which the meeting is called. In the case of an
annual meeting, the notice of meeting need not specifically state the purpose or
purposes thereof or the business to be transacted thereat unless such statement
is expressly required by the provisions of these Bylaws or by applicable law.
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If a meeting is adjourned for more than 120 days after the date fixed for the
original meeting, or if a new record date is fixed for the adjourned meeting, or
if the date, time and place for the adjourned meeting is not announced prior to
adjournment, then notice of the adjourned meeting shall be given as in the case
of an original meeting; otherwise, it is not necessary to give any notice of the
adjourned meeting other than by announcement at the meeting at which the
adjournment is taken.
A shareholder's attendance at a meeting constitutes a waiver by such shareholder
of (a) objection to lack of notice or defective notice of the meeting, unless
the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (b) objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the notice of the meeting, unless the shareholder objects to
considering the matter before it is voted upon.
Section 2.6 RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or in order to make a determination of shareholders for any
other proper purpose, the Board of Directors may fix in advance a date as the
record date for any such determination of shareholders, such record date in any
case to be not more than 70 days immediately preceding the date of the meeting
or the date on which the particular action, requiring such determination of
shareholders, is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, the close of business on the
day before the date on which notice of the meeting is first mailed to
shareholders shall be the record date for such determination of shareholders.
A determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date for the adjourned meeting, which it
must do if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting.
Section 2.7 SHAREHOLDERS' LIST. Not later than two business days after
the date notice of a meeting of shareholders is first given, the Secretary or
other officer or person having charge of the stock transfer books of the
Corporation shall prepare an alphabetical list of the shareholders entitled to
notice of such meeting, with the address of and number of shares held by each
shareholder, which list shall be kept on file at the principal office of the
Corporation (or such other place in the city where the meeting is to be held as
may be identified in the notice of the meeting) for the period commencing two
business days after notice of the meeting is first given and continuing through
such meeting, and which list shall be available for inspection by any
shareholder, or his or her agent or attorney, upon his or her demand, at any
time during regular business hours. This list shall also be produced and kept
open at the time and place of the meeting and shall be subject to inspection by
any shareholder, or his or her agent or attorney, during the whole time of the
meeting and any adjournment thereof.
Section 2.8 QUORUM. The holders of shares entitled to a majority of
votes entitled to be cast (as described in Section 2.10), present in person or
represented by proxy, shall constitute a quorum at all meetings of shareholders
for purposes of acting on any matter for which action by the
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shareholders is required. If there is no quorum at the opening of a meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn; and, at any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the original meeting.
Once a share is represented for any purpose at a meeting, it is deemed present
for quorum purposes for the remainder of the meeting and for any adjournment
thereof unless a new record date is or must be set for that adjourned meeting.
Section 2.9 ORGANIZATION. Each meeting of shareholders shall be
presided over by the President, or, in the absence or at the request of the
President, by such other officer as the President or the Board of Directors may
designate, or in their absence and in the absence of such designation, by any
person selected to preside by plurality vote of the shares represented and
entitled to vote at the meeting. The Secretary, or in the absence or at the
request of the Secretary, any person designated by the person presiding at the
meeting, shall act as secretary of the meeting.
Section 2.10 VOTING OF SHARES. Except as otherwise provided in the
Articles of Incorporation, each outstanding share having the right to vote on a
matter or matters submitted to a vote at a meeting of shareholders shall be
entitled to one vote on each such matter. A shareholder may vote in person or by
proxy.
Except in the election of directors (as provided in Section 3.4), if a quorum
exists, action on a matter by the shareholders entitled to vote on the matter is
approved by such shareholders if the votes cast favoring the action exceed the
votes cast opposing the action, unless a greater number of affirmative votes is
required by law or the Articles of Incorporation or a Bylaw adopted by the
shareholders.
Voting on all matters including the election of directors shall be by voice vote
or by a show of hands unless, as to any matter, the holders of shares entitled
to at least 25% of the votes of shares represented at the meeting and entitled
to vote on that matter shall demand, prior to the voting on such matter, a
ballot vote on such matter.
Section 2.11 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a meeting if
one or more written consents, setting forth the action so taken, shall be signed
by all of the persons who would be entitled to vote upon such action at a
meeting, whether before or after the action so taken, and delivered to the
Corporation to be included in the corporate minute book or filed with the
corporate records. Such consent has the same effect as a meeting vote and may be
described as such in any document.
Section 2.12 VOTING INSPECTORS. The Board of Directors in advance of
any meeting of shareholders may appoint one or three voting inspectors to act at
any such meeting or adjournment thereof, and in the absence of such appointment,
the officer or person acting as chairman of the meeting may, and shall if so
requested by any shareholder or proxy holder, make such appointment. Any
vacancy, whether from refusal to act or otherwise, may be filled by appointment
of the chairman of the meeting. If there are three inspectors, the decision or
certificate of any two shall be effective as the act of all.
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The voting inspectors shall determine the number of shares outstanding, the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the authenticity, validity and effect of proxies, receive votes,
ballots, assents or consents, hear and determine all challenges and questions in
any way arising in connection with the vote, count and tabulate all votes,
assents and consents, determine and announce the result, and do such acts as may
be proper to conduct the election or vote with fairness to all shareholders. On
request, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and make and execute a certificate of any
fact found by them.
The certificate of the inspectors shall be prima facie evidence of the facts
stated therein and of the vote as certified by them, unless overruled by a vote
of a majority of the shares represented at the meeting exclusive of the shares
as to which there is a controversy.
ARTICLE III - DIRECTORS
Section 3.1 GENERAL POWERS. The business and affairs of the Corporation
shall be managed by the Board of Directors or by such Executive Committee or
other committees of the Board as the Board may establish pursuant to these
Bylaws.
Section 3.2 NUMBER, TERM AND QUALIFICATIONS. The number of directors of
the Corporation shall not be less than 12 nor more than 16, the exact number of
authorized directors (in this Section sometimes referred to as the entire Board)
to be determined from time to time by resolution adopted by a majority of the
entire Board, and such exact number shall be 16 until otherwise determined by
resolution adopted by a majority of the entire Board. In the event that the
number of authorized directors is increased by such a resolution, the vacancy or
vacancies so resulting shall be filled by the shareholders. Any such vacancy or
vacancies not filled by the shareholders may be filled by a vote of a majority
of the directors then in office. A decrease in the number of authorized
directors shall not of itself remove any director prior to the expiration of his
term of office. The directors shall be divided into three classes, each class to
be as nearly equal in number as possible, to serve for terms of three years and
until their successors shall be elected and shall qualify. In the event of any
increase in the authorized number of directors, the additional directors shall
be so classified that all classes of directors shall be increased equally, as
nearly as possible, and, in the event of any decrease in the authorized number
of directors, all classes of directors shall be decreased equally, as nearly as
possible. In the event of the death, resignation, retirement, removal or
disqualification of a director during the director's elected term of office, the
successor shall be elected to serve only until the next meeting of shareholders
at which directors are elected. Directors need not be residents of the State of
North Carolina or shareholders of the Corporation.
Section 3.3 ELECTION OF DIRECTORS. Except as provided in Section 3.6,
directors shall be elected at the annual meeting of shareholders.
Section 3.4 VOTING FOR DIRECTORS. Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election of
directors at a meeting at which a quorum is present. Except as provided in the
Articles of Incorporation or required by applicable law, shareholders have no
right to cumulate their votes for directors.
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Section 3.5 REMOVAL. Directors may be removed from office with or
without cause by a vote of shareholders holding at least seventy-five percent
(75%) of the shares entitled to vote at an election of directors. However,
unless the entire Board is removed, an individual director may not be removed if
the number of shares voting against the removal would be sufficient to elect a
director if such shares were voted cumulatively at an annual election, provided
the right to cumulative voting exists under Section 4 above (Section 3.4). If
any directors are so removed, new directors may be elected at the same meeting.
Section 3.6 VACANCIES. A vacancy occurring in the Board of Directors,
including positions not filled by the shareholders or those resulting from an
increase in the number of directors, may be filled by a majority of the
remaining directors, though less than a quorum, or by the sole remaining
director. The shareholders may elect a director at any time to fill any vacancy
not filled by the directors.
Section 3.7 OFFICERS OF MEETINGS. There may be a Chairman of the Board
of Directors elected by the directors from their number at any meeting of the
Board. The Chairman of the Board shall serve for a term of one year or until his
successor is elected. The Chairman of the Board may be removed by the vote of a
majority of the number of directors then in office. The Chairman of the Board
shall preside at all meetings of the Board of Directors and perform such other
duties as may be prescribed by the Board. If a Chairman of the Board is not
elected, then the President, if present, shall preside at all meetings of the
Board of Directors. In the President's absence, the next officer in due order
who may be present shall preside. For the purpose of this Article III, the due
order of presiding shall be as follows: Chairman of the Board, President,
Executive Vice-President, Vice-President, Secretary and Treasurer. The Secretary
of the Corporation, or in his absence, an Assistant Secretary, shall keep a
record of the proceedings of all directors' meetings.
Section 3.8 COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the number of directors then in office, may designate and
appoint from among its members one or more Committees, each consisting of two or
more directors, who shall serve as members of such Committee at the pleasure of
the Board of Directors. Each such Committee, to the extent provided in such
resolution, shall have and may exercise all of the authority of the Board of
Directors in the management of the Corporation, except that no such Committee
shall have authority to: (a) authorize dividends or other distributions not
permitted by applicable law to be authorized by a Committee; (b) approve or
propose to shareholders action that applicable law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or on any Committee;
(d) amend the Articles of Incorporation; (e) adopt, amend or repeal bylaws; (f)
approve a plan of 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; (h) 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 (except that
the Board of Directors may authorize a Committee or a senior executive officer
to do so within limits specifically prescribed by the Board of Directors); or
(i) amend or repeal any resolution of the Board of Directors that by its terms
provides that it is not so amendable or repealable. Nothing herein shall
preclude the Board of Directors from establishing and appointing any committee,
whether of directors or otherwise, not having or exercising the authority of the
Board of Directors.
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Section 3.9 DIRECTORS EMERITUS. The Board of Directors may elect one or
more Directors Emeritus by a majority vote of the entire Board. The position of
Director Emeritus shall be an honorary position limited to persons who have
previously served as members of the Board of Directors. Each Director Emeritus
shall serve for a term extending until the next Annual Meeting of Directors and
may be re-elected for as many successive terms as the Board of Directors
determines. A Director Emeritus shall not be considered a member of the Board of
Directors for any purpose, shall not be considered in determining the presence
of a quorum and shall not be entitled to vote.
ARTICLE IV - MEETINGS OF DIRECTORS
Section 4.1 REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held immediately after, and at the same place as, the annual
meeting of shareholders. In addition, the Board of Directors may provide, by
resolution, the time and place, either within or without the State of North
Carolina, for the holding of additional regular meetings.
Section 4.2 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 or any five directors of the Corporation. Such meetings may be held
either within or without the State of North Carolina.
Section 4.3 NOTICE OF MEETINGS. Regular meetings of the Board of
Directors may be held without notice.
The person or persons calling a special meeting of the Board of Directors shall
give notice of the meeting to the directors by any usual means of communication.
If such notice is given to a director in writing by mail, it shall be mailed,
correctly addressed to such director with postage prepaid, no later than six
days prior to the date of the meeting. If such notice is given to a director in
writing otherwise than by mail, it shall be given so that it is received by such
director no later than two days prior to the meeting. If such notice is given
orally to a director, it shall be communicated orally to such director no later
than two days prior to the meeting. Delivery or completion of transmission of
written notice to the address of a director shall be deemed receipt by such
director, and any such written notice given to a director by mail that is not
timely mailed shall nevertheless be valid and effective if so received by such
director no later than two days prior to the date of the meeting.
A director's attendance at or participation in a meeting shall constitute a
waiver by such director of notice of such meeting, unless the director at the
beginning of the meeting (or promptly upon his or her arrival) objects to
holding the meeting or to the transaction of business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 4.4 QUORUM. A majority of the directors fixed by these Bylaws
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors.
Section 4.5 MANNER OF ACTING. Except as otherwise provided in these
Bylaws or required by applicable law, the affirmative vote of a majority of the
directors present at a meeting of the Board of Directors shall be the act of the
Board of Directors, if a quorum is present when the vote is taken.
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Section 4.6 ORGANIZATION. Each meeting of the Board of Directors shall
be presided over by the Chairman of the Board (if there shall be a person
holding such office), or, in the absence or at the request of the Chairman of
the Board, by the President, and in their absence or at their request, by any
person selected to preside by vote of a majority of the directors present. The
Secretary, or in the absence or at the request of the Secretary, any person
designated by the person presiding at the meeting, shall act as secretary of the
meeting.
Section 4.7 ACTION WITHOUT MEETING. Action required or permitted to be
taken by the Board of Directors or a Committee at a meeting may be taken without
a meeting if one or more written consents describing the action taken are signed
by each of the directors or members of the Committee, as the case may be,
whether before or after the action so taken, and filed with corporate records or
the minutes of the proceedings of the Board or Committee. Action so taken is
effective when the last director or Committee member signs such consent, unless
the consent specifies a different effective date. Such consent has the effect of
a meeting vote and may be described as such in any document.
Section 4.8 CONFERENCE TELEPHONE MEETINGS. Any one or more directors or
members of a Committee may participate in a meeting of the Board of Directors or
a 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 shall be deemed presence in person at such
meeting.
ARTICLE V - OFFICERS
Section 5.1 GENERAL. The officers of the Corporation shall consist of a
Chief Executive Officer (who shall be either the Chairman of the Board or the
President, as provided in these Bylaws), a President, a Secretary and a
Treasurer, and may also include a Chairman of the Board, a Chief Operating
Officer, and such Vice Presidents, Assistant Secretaries, Assistant Treasurers
and other officers as may be appointed by the Board of Directors or otherwise
provided in these Bylaws. Any two or more offices may be simultaneously held by
the same person, but no person may act in more than one capacity where action of
two or more officers is required. The title of any officer may include any
additional designation descriptive of such officer's duties as the Board of
Directors may prescribe.
Section 5.2 APPOINTMENT AND TERM. The officers of the Corporation shall
be appointed from time to time by the Board of Directors; provided, that the
Board of Directors may authorize a duly appointed officer to appoint one or more
other officers or assistant officers, other than appointment of the Chief
Executive Officer, the Chairman of the Board, the President or the Chief
Operating Officer. Each officer shall serve as such at the pleasure of the Board
of Directors.
Section 5.3 REMOVAL. Any officer may be removed by the Board of
Directors at any time with or without cause; but such removal shall not itself
affect the contract rights, if any, of the person so removed.
Section 5.4 COMPENSATION. The compensation of all officers of the
Corporation shall be fixed by, or in the manner prescribed by, the Board of
Directors.
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Section 5.5 CHIEF EXECUTIVE OFFICER. If there is a Chairman of the
Board and the Board of Directors designates the Chairman of the Board as the
Chief Executive Officer, then the Chairman of the Board shall be the Chief
Executive Officer of the Corporation. Otherwise, the President shall be the
Chief Executive Officer of the Corporation. Subject to the direction and control
of the Board of Directors, the Chief Executive Officer shall supervise and
control the management of the Corporation and shall have such duties and
authority as are normally incident to the position of chief executive officer of
a corporation and such other duties and authority as may be prescribed from time
to time by the Board of Directors or as are provided for elsewhere in these
Bylaws. The title of the Chairman of the Board or President, as the case may be,
serving as the Chief Executive Officer may, but need not, also refer to his or
her position as Chief Executive Officer.
Section 5.6 CHAIRMAN OF THE BOARD. The Board of Directors may, but need
not, appoint from among its members an officer designated as the Chairman of the
Board. If there is appointed a Chairman of the Board and such Chairman of the
Board is also designated by the Board of Directors to be the Chief Executive
Officer, then the Chairman of the Board shall have all of the duties and
authority of the Chief Executive Officer and shall also, when present, preside
over meetings of the Board of Directors. If there is a Chairman of the Board but
such Chairman of the Board is not also designated as the Chief Executive
Officer, then the Chairman of the Board shall, when present, preside over
meetings of the Board of Directors and shall have such other duties and
authority as may be prescribed from time to time by the Board of Directors or as
are provided for elsewhere in these Bylaws.
Section 5.7 CHIEF OPERATING OFFICER. If there is appointed a Chairman
of the Board who is also the Chief Executive Officer, then the President shall
be the Chief Operating Officer. If the President is the Chief Executive Officer,
then the President shall also serve as the Chief Operating Officer unless the
Board of Directors shall designate some other officer of the Corporation as the
Chief Operating Officer. Subject to the direction and control of the Chief
Executive Officer and the Board of Directors, the Chief Operating Officer shall
supervise and control the operations of the Corporation, shall have such duties
and authority as are normally incident to the position of chief operating
officer of a corporation and such other duties as may be prescribed from time to
time by the Chief Executive Officer or the Board of Directors, and, in the
absence or disability of the Chief Executive Officer, shall have the authority
and perform the duties of the Chief Executive Officer. The title of the
President or other officer serving as the Chief Operating Officer may, but need
not, also refer to his or her position as Chief Operating Officer.
Section 5.8 PRESIDENT. Unless there is appointed a Chairman of the
Board who is also designated the Chief Executive Officer, the President shall be
the Chief Executive Officer of the Corporation and shall have all of the duties
and authority of that office. If the President is not the Chief Executive
Officer, then the President shall be the Chief Operating Officer and shall have
all of the duties and authority of that office. If the President shall be the
Chief Executive Officer and no other officer shall have been designated by the
Board of Directors as the Chief Operating Officer, then the President shall also
have all of the duties and authority of the Chief Operating Officer. The
President shall also have such other duties and authority as may be prescribed
from time to time by the Board of Directors.
Section 5.9 VICE PRESIDENT. The Vice President, and if there be more
than one, the Executive Vice President or other Vice President designated by the
Board of Directors, shall, in the
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absence or disability of the President, have the authority and perform the
duties of said office (including the duties and authority of the President as
either Chief Executive Officer or Chief Operating Officer or both, if the
President serves as such). In addition, each Vice President shall perform such
other duties and have such other powers as are normally incident to the office
of Vice President or as shall be prescribed by the Chief Executive Officer, the
Chief Operating Officer or the Board of Directors.
Section 5.10 SECRETARY. The Secretary shall have the responsibility and
authority to maintain and authenticate the records of the Corporation; shall
keep, or cause to be kept, accurate records of the acts and proceedings of all
meetings of shareholders, directors and Committees; shall give, or cause to be
given, all notices required by law and by these Bylaws; shall have general
charge of the corporate books and records and of the corporate seal, and shall
affix the corporate seal to any lawfully executed instrument requiring it; shall
have general charge of the stock transfer books of the Corporation and shall
keep, or cause to be kept, all records of shareholders as are required by
applicable law or these Bylaws; shall sign such instruments as may require the
signature of the Secretary; and, in general, shall perform all duties incident
to the office of Secretary and such other duties as may be assigned to him or
her from time to time by the Chief Executive Officer, the Chief Operating
Officer, or the Board of Directors.
Section 5.11 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; shall keep, or
cause to be kept, full and accurate accounts of the finances of the Corporation
in books especially provided for that purpose, and shall generally have charge
over the Corporation's accounting and financial records; shall cause a true
statement of its assets and liabilities as of the close of each fiscal year, and
of the results of its operations and of cash flows for such fiscal year, all in
reasonable detail, including particulars as to convertible securities then
outstanding, to be made as soon as practicable after the end of such fiscal
year. The Treasurer shall also prepare and file, or cause to be prepared and
filed, all reports and returns required by Federal, State or local law and shall
generally perform all other duties incident to the office of Treasurer and such
other duties as may be assigned to him or her from time to time by the Chief
Executive Officer, the Chief Operating Officer or the Board of Directors.
Section 5.12 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries and Assistant Treasurers, if any, shall, in the absence or
disability of the Secretary or the Treasurer, respectively, have all the powers
and perform all of the duties of those offices, and they shall in general
perform such other duties as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the Chief Executive Officer, the Chief Operating
Officer or the Board of Directors.
Section 5.13 BONDS. The Board of Directors may by resolution require
any and 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 of Directors.
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ARTICLE VI - CONTRACTS, LOANS AND DEPOSITS
Section 6.1 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 on behalf of the Corporation, and such authority may be general
or confined to specific instances.
Section 6.2 LOANS. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 6.3 CHECKS AND DRAFTS. All checks, drafts and other orders for
the payment of money issued in the name of the Corporation shall be signed by
such officer or officers, agent or agents of the Corporation and in such manner
as shall from time to time be determined by resolution of the Board of
Directors.
Section 6.4 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 shall direct.
ARTICLE VII - CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 7.1 CERTIFICATES FOR SHARES. Every shareholder of the
Corporation shall be entitled to a certificate or certificates for the fully
paid shares owned by him, which certificates shall be consecutively numbered or
otherwise identified, and shall be in such form as the Board of Directors shall
determine. Each certificate shall be signed by the President, Executive
Vice-President or Vice-President and by the Secretary, Assistant Secretary,
Treasurer, or Assistant Treasurer, either manually or in facsimile, and shall be
sealed with the seal of the Corporation or a facsimile thereof. The signatures
of any such officers upon a certificate may be in facsimile or may be engraved
or printed if the certificate is countersigned by a transfer agent other than
the Corporation itself or an employee of the Corporation. In case any officer
who has signed or whose facsimile or other signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of its issue.
Section 7.2 TRANSFER OF SHARES. Transfer of shares represented by
certificates shall be made on the stock transfer books of the Corporation only
upon the surrender of the certificates for the shares sought to be transferred
by the record holder thereof or by his or her duly authorized agent, transferee
or legal representative, or as otherwise provided by applicable law. All
certificates surrendered for transfer shall be canceled before new certificates
for the transferred shares shall be issued.
Section 7.3 LOST CERTIFICATES. The Board of Directors may authorize the
issuance of a new share certificate in place of a certificate claimed to have
been lost, destroyed or wrongfully taken, upon receipt of an affidavit of such
fact from the person claiming the loss or destruction. When authorizing such
issuance of a new certificate, the Board may require the claimant to give the
Corporation a bond in such sum and with such sureties as it may direct to
indemnify the Corporation against loss from any claim with respect to the
certificate claimed to have been lost,
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destroyed or wrongfully taken; or the Board may, by resolution reciting that the
circumstances justify such action, authorize the issuance of the new certificate
without requiring such a bond with respect to a certificate claimed to have been
lost or destroyed. Any such authorization by the Board of Directors may be
general or confined to specific instances. Nothing herein shall require the
Board of Directors to authorize the issuance of any such replacement certificate
under any circumstances in which the Corporation is not required to issue such
certificate, this provision being permissive and not mandatory.
ARTICLE VIII - RECORDS AND REPORTS
Section 8.1 GENERAL. The Corporation shall keep all records and submit
and file all reports and filings as are required by applicable law. Unless the
Board of Directors otherwise directs, the Treasurer shall be responsible for
keeping, or causing to be kept, all financial and accounting records of the
Corporation and for submitting or filing, or causing to be submitted or filed,
all reports and filings of a financial or accounting nature, and the Secretary
shall be responsible for keeping, or causing to be kept, all other records and
for submitting or filing, or causing to be submitted or filed, all other reports
and filings.
The Corporation shall keep as permanent records minutes of all meetings of its
incorporators, shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by Committees of the Board of Directors. The Corporation
shall maintain appropriate accounting records. The Corporation or its agent
shall maintain a record of its shareholders, in a form that permits preparation
of a list of the names and addresses of all shareholders, in alphabetical order
by class of shares showing the number and class of shares held by each. The
Corporation shall maintain its records in written form or in another form
capable of conversion into written form within a reasonable time.
Section 8.2 RECORDS AT PRINCIPAL OFFICE. The Corporation shall keep a
copy of the following records at the Corporation's principal office: (a) its
Articles or restated Articles of Incorporation and all amendments to them
currently in effect; (b) its Bylaws or restated Bylaws and all amendments to
them currently in effect; (c) resolutions adopted by the Board of Directors
creating one or more classes or series of shares, and fixing their relative
rights, preferences, and limitations, if shares issued pursuant to those
resolutions are outstanding; (d) the minutes of all shareholders' meetings, and
records of all action taken by shareholders without a meeting, for the past
three years; (e) all written communications to shareholders generally within the
past three years and the financial statements required by law to be made
available to the shareholders for the past three years; (f) a list of the names
and business addresses of its current directors and officers; and (g) its most
recent annual report delivered to the North Carolina Secretary of State pursuant
to the North Carolina Business Corporation Act.
Section 8.3 FINANCIAL STATEMENTS. The Corporation shall make available
to its shareholders annual financial statements, which may be consolidated or
combined statements of the Corporation and one or more of its subsidiaries, as
appropriate, that include a balance sheet as of the end of the fiscal year, an
income statement for that year, and a statement of cash flows for the year
unless that information appears elsewhere in the financial statements. If
financial statements are prepared for the Corporation on the basis of generally
accepted accounting principles, the annual financial statements shall also be
prepared on that basis.
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If the annual financial statements are reported upon by a public accountant,
such accountant's report shall accompany them. If not, the statements shall be
accompanied by a statement of the President or the Treasurer or other person
responsible for the Corporation's accounting records: (a) stating his or her
reasonable belief whether the statements were prepared on the basis of generally
accepted accounting principles and, if not, describing the basis of preparation;
and (b) describing any respects in which the statements were not prepared on a
basis of accounting consistent with the statements prepared for the preceding
year.
The Corporation shall mail the annual financial statements, or a written notice
of their availability, to each shareholder within 120 days after the close of
each fiscal year; provided that the failure of the Corporation to comply with
this requirement shall not constitute the basis for any claim of damages by any
shareholder unless such failure was in bad faith. Thereafter, on written request
from a shareholder who was not mailed the statements, the Corporation shall mail
such shareholder the latest financial statements.
Section 8.4 ANNUAL REPORT. The Corporation shall prepare and deliver to
the North Carolina Secretary of State for filing each year the annual report
required by the North Carolina Business Corporation Act. Such annual report
shall be filed each year within 60 days after the end of the month of December,
or at such other time as is then required by applicable law. The Corporation
may, and when required by law shall, file all necessary or appropriate
corrections and amendments to such annual report, and shall promptly file an
amendment to its annual report to reflect any change in the location of the
principal office of the Corporation.
ARTICLE IX - GENERAL PROVISIONS
Section 9.1 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 the Articles of
Incorporation of the Corporation. The Board of Directors may fix in advance a
record date for determining the shareholders entitled to a dividend. If such
record date is not fixed by the Board of Directors, the date the Board of
Directors authorizes such dividend shall be the record date.
Section 9.2 SEAL. The corporate seal of the Corporation shall consist
of two concentric circles between which is the name of the Corporation, "LANCE,
INC." at the top and "NORTH CAROLINA" at the bottom, and in the center of which
is inscribed "SEAL" at the top and "1926" at the bottom. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed, stamped or
reproduced by any means. Any officer of the Corporation authorized to execute or
attest a document on behalf of the Corporation may affix or reproduce on such
document, as and for the corporate seal of the Corporation, a seal in any other
form sufficient to evidence that it is intended by such officer to represent the
corporate seal of the Corporation, in which case such seal shall be as effective
as the corporate seal in the form herein prescribed.
Section 9.3 NOTICE AND WAIVER OF NOTICE. Except as otherwise provided
in the Articles of Incorporation or these Bylaws, any notice permitted or
required to be given pursuant to these Bylaws may be given in any manner
permitted by applicable law and with the effect therein provided. Without
limiting the generality of the forgoing, written notice by the Corporation to a
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shareholder is effective when deposited in the United States mail with postage
thereon prepaid and correctly addressed to the shareholder's address shown in
the Corporation's current record of shareholders.
Whenever any notice is required to be given to any shareholder or director under
applicable law or under the provisions of the Articles of Incorporation or
Bylaws, a waiver thereof in writing signed by the person or persons entitled to
such notice and included in the minutes or filed with the corporate records,
whether done before or after the time stated in the notice, shall be equivalent
to the giving of such notice.
Section 9.4 FISCAL YEAR. Unless otherwise ordered by the Board of
Directors, the fiscal year of the Corporation shall end on the last Saturday in
each calendar year.
Section 9.5 INDEMNIFICATION. Any person who at any time serves or has
served as a director of the Corporation shall have a right to be indemnified by
the Corporation to the fullest extent permitted by law against (a) litigation
expenses, including reasonable attorneys fees, actually and necessarily incurred
by him in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, whether
formal or informal, and whether or not brought by or on behalf of the
Corporation, arising out of his status as such director, or his status as an
officer, employee or agent of the Corporation, or his service, at the request of
the Corporation, as a director, officer, partner, trustee, employee or agent of
any other corporation, partnership, joint venture, trust or other enterprise or
as a trustee or administrator under an employee benefit plan, or his activities
in any of the foregoing capacities, and (b) reasonable payments made by him in
satisfaction of any judgment, money decree, fine (including any excise tax
assessed with respect to an employee benefit plan), penalty or settlement for
which he may have become liable in any such action, suit or proceeding.
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 this Bylaw, including without limitation, to the
extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
and giving notice to, and obtaining approval by, the shareholders of the
Corporation.
Expenses incurred by a director in defending an action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director to pay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation against such expenses.
Any person who at any time after the adoption of this Bylaw serves or has served
in any of the aforesaid capacities for or on behalf of the Corporation shall be
deemed to be doing or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein, and any modification or
repeal of these provisions for indemnification shall be prospective only and
shall not affect any rights or obligations existing at the time of such
modification or repeal. 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 provisions of this
Bylaw and shall not be limited by the provisions for indemnification in Sections
55-8-51 through 55-8-56 of the North Carolina Business Corporation Act or any
successor statutory provisions.
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Any person who is entitled to indemnification by the Corporation hereunder shall
also be entitled to reimbursement of reasonable costs, expenses and attorneys
fees incurred in obtaining such indemnification.
Section 9.6 NORTH CAROLINA SHAREHOLDER PROTECTION ACT. The provisions
of Article 9 of Chapter 55 of the General Statutes of North Carolina, entitled
"The North Carolina Shareholder Protection Act," shall not apply to the
Corporation.
Section 9.7 NORTH CAROLINA CONTROL SHARE ACQUISITION ACT. The
provisions of Article 9A of Chapter 55 of the General Statutes of North Carolina
entitled "The North Carolina Control Share Acquisition Act," shall not apply to
the Corporation.
Section 9.8 CONSTRUCTION. All references in these Bylaws to
"shareholder" or "shareholders" refer to the person or persons in whose names
shares are registered in the records of the Corporation, except to the extent
that a beneficial owner of shares that are registered in the name of a nominee
is recognized by the Corporation as a "shareholder" in accordance with a
procedure therefor that the Corporation may, but need not, establish pursuant to
applicable law. All personal pronouns used in these Bylaws shall include persons
of any gender. All terms used herein and not specifically defined herein but
defined in the North Carolina Business Corporation Act shall have the same
meanings herein as given under the North Carolina Business Corporation Act,
unless the context otherwise requires.
Section 9.9 AMENDMENTS. Except as otherwise provided herein, these
Bylaws may be amended or repealed and new bylaws may be adopted by the
affirmative vote of a majority of the directors then holding office at any
regular or special meeting of the Board of Directors.
Sections 2 and 5 of Article III (Sections 3.2 and 3.5) of these Bylaws have been
adopted by the shareholders of this Corporation and may not be amended, repealed
or annulled except by a vote of the shareholders holding at least seventy-five
percent (75%) of the shares of the Corporation entitled to vote.
Amended: March 9, 1979
January 13, 1987
February 17, 1987
July 14, 1987
January 16, 1990
April 20, 1990
October 9, 1990
April 16, 1993
April 21, 1995
January 11, 2000
September 1, 2000
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