EXHIBIT (3b)
RESTATED BY-LAWS
OF
UNIFI, INC.
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TABLE OF CONTENTS
ARTICLE I
SHAREHOLDERS
Section 1.01 - Annual Meeting...................................1
Section 1.02 - Special Meetings ................................1
Section 1.03 - Notice of Meetings
of Shareholders..................................1
Section 1.04 - Waivers of Notice................................3
Section 1.05 - Quorum...........................................3
Section 1.06 - Fixing Record Date...............................3
Section 1.07 - List of Shareholders
at Meeting.......................................4
Section 1.08 - Proxies..........................................4
Section 1.09 - Selection of Duties
of Inspectors....................................7
Section 1.10 - Qualification of Voters..........................8
Section 1.11 - Vote of Shareholders............................10
Section 1.12 - Written Consent of
Shareholders....................................10
ARTICLE II
DIRECTORS
Section 2.01 - Management of Business;
Qualification of Directors......................11
Section 2.02 - Number of Directors.............................12
Section 2.03 - Classification and
Election........................................12
Section 2.04 - Newly Created Directorships
and Vacancies...................................12
Section 2.05(a) - Resignations.................................13
Section 2.05(b) - Removal of Directors.........................14
Section 2.06 - Quorum of Directors.............................14
Section 2.07 - Annual Meetings.................................14
Section 2.08 - Regular Meetings................................15
Section 2.09 - Special Meetings................................15
Section 2.10 - Compensation....................................15
Section 2.11 - Committees......................................15
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Section 2.12 - Interested Directors............................16
Section 2.13 - Loans to Directors..............................17
Section 2.14 - Consent to Action...............................17
ARTICLE III
OFFICERS
Section 3.01 - Election or Appointment;
Number..........................................18
Section 3.02 - Term............................................18
Section 3.03 - Removal.........................................19
Section 3.04 - Authority.......................................19
Section 3.05 - Voting Securities Owned
by the Corporation..............................19
ARTICLE IV
CAPITAL STOCK
Section 4.01 - Stock Certificates..............................20
Section 4.02 - Transfers.......................................21
Section 4.03 - Registered Holders..............................21
Section 4.04 - New Certificates................................21
ARTICLE V
FINANCIAL NOTICES TO SHAREHOLDERS
Section 5.01 - Dividends.......................................22
Section 5.02 - Share Distribution and
Changes.........................................22
Section 5.03 - Cancellation of Reacquired
Shares..........................................23
Section 5.04 - Reduction of Stated Capital.....................24
Section 5.05 - Application of Capital Surplus
to Elimination of a Deficit.....................24
Section 5.06 - Conversion of Shares............................24
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ARTICLE VI
INDEMNIFICATION
Section 6.01 - Right to Indemnification........................25
Section 6.02 - Right of Claimant to
Bring Suit......................................27
Section 6.03 - Nonexclusiveness................................28
Section 6.04 - Insurance for Indemnification
of Directors and Officers.......................29
ARTICLE VII
MISCELLANEOUS
Section 7.01 - Offices.........................................30
Section 7.02 - Seal............................................30
Section 7.03 - Checks..........................................30
Section 7.04 - Fiscal Year.....................................30
Section 7.05 - Books and Records...............................30
Section 7.06 - Duty of Directors and
Officers........................................31
Section 7.07 - When Notice or Lapse of
Time Unnecessary; Notices
Dispensed With When Delivery
is Prohibited...................................31
Section 7.08 - Entire Board....................................32
Section 7.09 - Amendment of By-Laws............................32
Section 7.10 - Nonapplication of North Carolina
Shareholder Protection Act......................33
Section 7.11 - Section Headings................................33
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RESTATED BY-LAWS
OF
UNIFI, INC.
ARTICLE I
Shareholders
Section 1.01. Annual Meeting. The Annual Meeting of
Shareholders for the election of Directors and the transaction of
such other business as may come before it shall be held on such
date in each calendar year, not later than the one hundred
fiftieth (150) day after the close of the Corporation's preceding
fiscal year, and at such place as shall be fixed by the President
and stated in the notice or waiver of notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the
shareholders, for any purpose of purposes, may be called at any
time by any Director, the President, any Vice President, the
Treasurer or the Secretary or by resolution of the Board of
Directors. Special meetings of the shareholders shall be held at
such place as shall be fixed by the person or persons calling the
meeting and stated in the notice or waiver of notice of the
meeting.
Section 1.03. Notice of Meetings of Shareholders. Whenever
shareholders are required or permitted to take any action at a
meeting, written notice shall state the place, date and hour of
the meeting and, unless it is the Annual Meeting, indicate that
it is being issued by or at the direction of the person or
persons calling the meeting. Notice of a special meeting shall
also state the purpose or purposes for which the meeting is
called. If, at any meeting, action is proposed to be taken which
would, if taken, entitle shareholders fulfilling the requirements
of Section 623 of the Business Corporation Law to receive payment
for their shares, the notice of such meeting shall include a
statement of that purpose to that effect. A copy of the notice
of any meeting shall be given, personally or by mail, not less
than ten nor more than fifty days before the date of the meeting,
to each shareholder entitled to vote at such meeting. If mailed,
such notice is given when deposited in the United States mail,
with postage thereon prepaid, directed to the shareholder at his
address as it appears on the record of shareholders, or, if he
shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, then
directed to him at such other address.
When a meeting is adjourned to another time or place, it
shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken,
and at the adjourned meeting any business may be transacted that
might have been transacted on the original date of the meeting.
However, if after the adjournment, the Board of Directors fixes a
new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record on
the new record date entitled to notice under the next preceding
paragraph.
Section 1.04. Waivers of Notice. Notice of meeting need
not be given to any shareholder who submits a signed Waiver of
Notice, in person or by proxy, whether before or after the
meeting. The attendance of any shareholder at a meeting, in
person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute
a Waiver of Notice by him.
Section 1.05. Quorum. The holders of a majority of the
shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of any business,
provided that when a specified item of business is required to be
voted on by a class or series, voting as a class, the holders of
a majority of the shares of such class or series shall constitute
a quorum for the transaction of such specified item of business.
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholders.
The shareholders present may adjourn the meeting despite the
absence of a quorum and at any such adjourned meeting at which
the requisite amount of voting stock shall be represented, any
business may be transacted which might have been transacted at
the meeting as originally noticed.
Section 1.06. Fixing Record Date. For the purpose of
determining the shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled
to receive payment of any dividend or the allotment of any
rights, or for the purpose of any other action, the Board of
Directors may fix, in advance, a date as the record date for any
such determination of shareholders. Such date shall not be more
than fifty nor less than ten days before the date of such
meeting, nor more than fifty days prior to any other action.
When a determination of shareholders of record entitled to notice
of or to vote at any meeting or shareholders has been made as
provided in this Section, such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new
record date under this Section for the adjourned meeting.
Section 1.07. List of Shareholders at Meeting. A list of
shareholders as of the record date, certified by the corporate
officer responsible for its preparation or by a transfer agent,
shall be produced at any meeting of shareholders upon the request
thereat or prior thereto of any shareholder. If the right to
vote at any meeting is challenged, the inspectors of election, or
person presiding thereat, shall require such list of shareholders
to be produced as evidence of the right of the persons challenged
to vote at such meeting, and all persons who appear from such
list to be shareholders entitled to vote thereat may vote at such
meeting.
Section 1.08. Proxies. Every shareholder entitled to vote
at a meeting of shareholders or to express consent or dissent
without a meeting may authorize another person or persons to act
for him by proxy.
Every proxy must be signed by the shareholder or his
attorney-in-fact. No proxy shall be valid after the expiration
of eleven months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of
the shareholder executing it, except as otherwise provided in
this Section.
The authority of the holder of a proxy to act shall not be
revoked by the incompetence or death of the shareholder who
executed the proxy unless, before the authority is exercised,
written notice of an adjudication of such incompetence or of such
death is received by the Corporate Officer responsible for
maintaining the list of shareholders.
Except when other provision shall have been made by written
agreement between the parties, the record holder of shares which
are held by a pledgee as security or which belong to another,
upon demand therefor and payment of necessary expenses thereof,
shall issue to the pledgor or to such owner of such shares a
proxy to vote or take other action thereon.
A shareholder shall not sell his vote or issue a proxy to
vote to any person for any sum of money or anything of value,
except as authorized in this Section and Section 620 of the
Business Corporation Law.
A proxy which is entitled "irrevocable proxy" and which
states that it is irrevocable, is irrevocable when it is held by
any of the following or a nominee of any of the following:
(1) A Pledgee;
(2) A person who has purchased or agreed to purchase the
shares;
(3) A creditor or creditors of the Corporation who extend
or continue credit to the Corporation in consideration
of the proxy if the proxy states that it was given in
consideration of such extension or continuation of
credit, the amount thereof, and the name of the person
extending or continuing credit;
(4) A person who has contracted to perform services as an
Officer of the Corporation, if a proxy is required by
the contract of employment, if the proxy states that it
was given in consideration of such contract of
employment, the name of the employee and the period of
employment contracted for;
(5) A person designated by or under an agreement under
paragraph (a) of said Section 620.
Notwithstanding a provision in a proxy, stating that it is
irrevocable, the proxy becomes revocable after the pledge is
redeemed, or the debt of the Corporation is paid, or the period
of employment provided for in the contract of employment has
terminated, or the agreement under paragraph (a) of said Section
620 has terminated, and becomes revocable, in a case provided for
in subparagraph (3) or (4) above, at the end of the period, if
any, specified therein as the period during which it is
irrevocable, or three years after the date of the proxy,
whichever period is less, unless the period of irrevocability is
renewed from time to time by the execution of a new irrevocable
proxy as provided in this Section. This paragraph does not
affect the duration of a proxy under the second paragraph of this
Section.
A proxy may be revoked, notwithstanding a provision making
it irrevocable, by a purchaser of shares without knowledge of the
existence of the provision unless the existence of the proxy and
its irrevocability is noted conspicuously on the face or back of
the certificate representing such shares.
Section 1.09. Selection and Duties of Inspectors. The Board
of Directors, in advance of any shareholders' meeting, may
appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the
person presiding at a shareholders' meeting may, and on the
request of any shareholder entitled to vote thereat shall,
appoint one or more inspectors. In case any person appointed
failed to appear or act, the vacancy may be filled by appointment
made by the Board in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his
ability.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented
at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting
or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by
them. Any report or certificate made by them shall be prima
facie evidence of the facts stated and of the vote as certified
by them.
Unless appointed by the Board of Directors or requested by a
shareholder, as above provided in this Section, inspectors shall
be dispensed with at all meetings of shareholders. The vote
upon any question before any shareholders' meeting need not be by
ballot.
Section 1.10. Qualification of Voters. Every shareholder
of record shall be entitled at every meeting of shareholders to
one vote for every share standing in his name on the record of
shareholders, except as expressly provided otherwise in this
Section and except as otherwise expressly provided in the
Certificate of Incorporation of the Corporation.
Treasury shares and shares held by another domestic or
foreign corporation of any type or kind, if a majority of the
shares entitled to vote in the election of Directors of such
other corporation is held by the Corporation, shall not be shares
entitled to vote or to be counted in determining the total number
of outstanding shares.
Shares held by an administrator, executor, guardian,
conservator, committee, or other fiduciary, except a Trustee, may
be voted by him, either in person or by proxy, without transfer
of such shares into his name. Shares held by a Trustee may be
voted by him, either in person or by proxy, only after the shares
have been transferred into his name as Trustee or into the name
of his nominee.
Shares held by or under the control of a receiver may be
voted by him without the transfer thereof into his name if
authority so to do is contained in an order of the court by which
such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the
name of the pledgee, or a nominee of the pledgee.
Redeemable shares which have been called for redemption
shall not be deemed to be outstanding shares for the purpose of
voting or determining the total number of shares entitled to vote
on any matter on and after the date on which written notice of
redemption has been sent to holders thereof and a sum sufficient
to redeem such shares has been deposited with a bank or trust
company with irrevocable instruction and authority to pay the
redemption price to the holders of the shares upon surrender of
certificates therefor.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such Officer,
agent or proxy as the By-Laws of such corporation may provide,
or, in the absence of such provision, as the Board of Directors
of such corporation may determine.
When shares are registered on the record of shareholders of
the Corporation in the name of, or have passed by operation of
law or by virtue of any deed of trust or other instrument to two
or more fiduciaries, and if the fiduciaries shall be equally
divided as to voting such shares, any court having jurisdiction
of their accounts, upon petition by any of such fiduciaries or by
any party in interest, may direct the voting of such shares for
the best interest of the beneficiaries. This paragraph shall not
apply in any case where the instrument or order of the court
appointing such fiduciaries shall otherwise direct how such
shares shall be voted.
Notwithstanding the foregoing paragraphs of this Section,
the Corporation shall be protected in treating the persons whose
names shares stand on the record of shareholders as the owners
thereof for all purposes.
Section 1.11. Vote of Shareholders. Directors shall be
elected by a plurality of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote in the
election. Whenever any corporate action, other than the election
of Directors, is to be taken by vote of the shareholders, it
shall, except as otherwise required by the Business Corporation
Law or by the Certificate of Incorporation of the Corporation, be
authorized by a majority of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote thereon.
Section 1.12. Written Consent of Shareholders. Whenever
under the Business Corporation Law shareholders are required or
permitted to take any action by vote, such action may be taken
without a meeting on written consent, setting forth the action so
taken, signed by the holders of all outstanding shares entitled
to vote thereon. This paragraph shall not be construed to alter
or modify the provisions of any section of the Business
Corporation Law or any provision in the Certificate of
Incorporation of the Corporation not inconsistent with the
Business Corporation Law under which the written consent of the
holders of less than all outstanding shares is sufficient for
corporate action.
Written consent thus given by the holders of all outstanding
shares entitled to vote shall have the same effect as a unanimous
vote of shareholders.
ARTICLE II
Directors
Section 2.01. Management of Business; Qualifications of
Directors. The business of the Corporation shall be managed by
its Board of Directors, each of whom shall be at least twenty-one
years of age.
Directors need not be Stockholders.
The Board of Directors, in addition to the powers and
authority expressly conferred upon it herein, by statute, by the
Certificate of Incorporation of the Corporation and otherwise, is
hereby empowered to exercise all such powers as may be exercised
by the Corporation, except as expressly provided otherwise by the
statutes of the State of New York, by the Certificate of
Incorporation of the Corporation and these By-Laws.
Section 2.02. Number of Directors. The number of Directors
which shall constitute the entire Board shall be ten (10), but
this number may be increased and subsequently again increased or
decreased from time to time by the affirmative vote of the
majority of Directors, except that the number of Directors shall
not be less than nine (9).
Section 2.03. Classification and Election. (a) The
Directors shall be divided into three classes designated as Class
1, Class 2 and Class 3. All classes shall be as nearly equal in
number as possible and no class shall include less than three (3)
Directors. The term of office of the Directors initially
classified shall be as follows: Class 1 shall expire at the next
(1992) Annual Meeting of the Shareholders, Class 2 shall expire
at the second succeeding (1993) Annual Meeting of the
Shareholders, and Class 3 shall expire at the third succeeding
(1994) Annual Meeting of the Shareholders. (b) At each Annual
Meeting after such initial classification, Directors to replace
those whose terms expired at such Annual Meeting shall be elected
to hold office until the third succeeding Annual Meeting of the
Shareholders. A Director shall hold office until the Annual
Meeting for the year in which his term expires and subject to
prior death, resignation, retirement, or removal from office,
until his successor shall be elected and qualified.
Section 2.04. Newly Created Directorship and Vacancies.
Newly created Directorships or any decrease in Directorship shall
be apportioned among the classes as to make all classes as nearly
equal in number as possible. Newly created Directorships
resulting from an increase in the number of Directors and
vacancies caused by death, resignation, retirement, or removal
from office, subject to Section 2.05(b), may be filled by the
majority of the Directors voting on the particular matter, if a
quorum is present. If the number of Directors then in office is
less than a quorum, such newly created Directorships and
vacancies may be filled by the affirmative vote of a majority of
the Directors in office. When the number of Directors is
increased by the Board, and the newly created Directorships are
filled by the Board, there shall be no classification of the
additional Directors until the next Annual Meeting of the
shareholders. Any Director elected by the Board to fill a
vacancy shall serve until the next meeting of the shareholders,
at which the election of the Directors is in the regular order of
business, and until his successor is elected and qualified.
In no case will a decrease in the number of Directors shorten the
term of an incumbent Director.
Section 2.05(a). Resignations. Any Director of the
Corporation may resign at any time by giving written notice to
the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time
specified therein, if any, or if no time is specified therein,
then upon receipt of such notice by the addressee; and, unless
otherwise provided therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 2.05(b). Removal of Directors. Any or all of the
Directors may be removed at any time (i) for cause by vote of the
shareholders or by action on the Board of Directors or (ii)
without cause by vote of the shareholders, except as expressly
provided otherwise by Section 706 of the Business Corporation
Law. The Board of Directors shall fill vacancies occurring in
the Board by reason of removal of Directors for cause. Vacancies
occurring by reason of removal without cause shall be filled by
the Shareholders.
Section 2.06. Quorum of Directors. At all meetings of the
Board of Directors, a majority of the number of Directors then
office shall be necessary and sufficient to constitute a quorum
for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors, except as expressly
provided otherwise by the statutes of the State of New York and
except as provided in the third sentence of Section 2.04, in
Section 2.11 and Section 7.09 hereof.
A majority of the Directors present, whether or not a quorum
is present, may adjourn any meeting of the Directors to another
time and place. Notice of any adjournment need not be given if
such time and place are announced at the meeting.
Section 2.07. Annual Meeting. The Board of Directors shall
meet immediately following the adjournment of the Annual Meeting
of shareholders in each year at the same place and no notice of
such meeting shall be necessary.
Section 2.08. Regular Meetings. Regular meetings of the
Board of Directors may be held at such time and place as shall
from time to time be fixed by the Board and no notice thereof
shall be necessary.
Section 2.09. Special Meetings. Special meetings may be
called at any time by any Director, the President, any Vice
President, the Treasurer, or the Secretary or by resolution of
the Board of Directors. Special meetings shall be held at such
place as shall be fixed by the person or persons calling the
meeting and stated in the notice or waiver of notice of the
meeting.
Section 2.10. Compensation. Directors shall receive such
fixed sums and expenses of attendance for attendance at each
meeting of the Board or of any committee and/or such salary as
may be determined from time to time by the Board of Directors;
provided that nothing herein contained shall be construed to
preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 2.11. Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board, may
designate from among its members an Executive Committee and other
committees, each consisting of three or more Directors, and each
of which, to the extent provided in the resolution, shall have
the authority of the Board of Directors, except that no such
committee shall have authority as to the following matters:
(a) The submission to shareholders of any action that needs
shareholder's authorization under the Business
Corporation Law.
(b) The filling of vacancies in the Board of Directors or
in any committee.
(c) The fixing of compensation of the Directors for serving
on the Board of Directors or on any committee.
(d) The amendment or repeal of the By-Laws, or the adoption
of new By-Laws.
(e) The amendment or repeal of any resolution of the Board
of Directors which by its terms shall not be so
amendable or repealable.
The Board may designate one or more Directors as alternate
members of any such committee, who may replace any absent member
or members at any meeting of such committee. Each such committee
shall serve at the pleasure of the Board of Directors.
Regular meetings of any such committee shall be held at such
time and place as shall from time to time be fixed by such
committee and no notice thereof shall be necessary. Special
meetings may be called at any time by any Officer of the
Corporation or any member of such committee. Notice of each
special meeting of each such committee shall be given (or waived)
in the same manner as notice of a special meeting of the Board of
Directors. A majority of the members of any such committee shall
constitute a quorum for the transaction of business and the act
of a majority of the members present at the time of the vote, if
a quorum is present at such time, shall be the act of the
committee.
Section 2.12. Interested Directors. No contract or other
transaction between the Corporation and one or more of its
Directors, or between the Corporation and any other corporation,
firm, association or other entity in which one or more of the
Corporation's Directors are Directors or Officers, or are
financially interested, shall be either void or voidable for this
reason alone or by reason alone that such Director or Directors
are present at the meeting of the Board of Directors, or of a
committee thereof, which approves such contract or transaction,
or that his or their votes are counted for such purpose:
(1) If the fact of such common Directorship, Officership or
financial interest is disclosed or known to the Board
or committee, and the Board or committee approves such
contract or transaction by a vote sufficient for such
purpose without counting the vote or votes of such
interested Director or Directors;
(2) If such common Directorship, Officership or financial
interest is disclosed or known to the shareholders
entitled to vote thereon, and such contract or
transaction is approved by vote of the shareholders; or
(3) If the contract or transaction is fair and reasonable
as to the Corporation at the time it is approved by the
Board, a committee of the shareholders.
Common or interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board or of a
committee which approves such contract or transaction.
Section 2.13. Loans to Directors. A loan shall not be made
by the Corporation to any Director unless it is authorized by
vote of the shareholders. For this purpose, the shares of the
Director who would be the borrower shall not be shares entitled
to vote. A loan made in violation of this Section shall be a
violation of the duty to the Corporation of the Directors
approving it, but the obligation of the borrower with respect to
the loan shall not be affected thereby.
Section 2.14. Consent to Action. Any action required or
permitted to be taken by the Board of Directors or any committee
thereof may be taken without a meeting if all members of the
Board or committee consent in writing, whether done before or
after the action so taken, to the adoption of a resolution
authorizing the action. The resolution and the written consent
thereto shall be filed with the Minutes of the proceeding of the
Board or the committee.
ARTICLE III
Officers
Section 3.01. Election or Appointment: Number. The
Officers shall be a Chairman, a Vice-Chairman, a President, a
Secretary, a Treasurer, and such number of Executive
Vice-Presidents, Vice-Presidents, Assistant Secretaries and
Assistant Treasurers, and such other Officers as the Board may
from time to time determine. Any person may hold two or more
offices at the same time, except the offices of President and
Secretary. Any Officer, except the Chairman, Vice-Chairman and
the President of the Corporation, may but does not need to be
chosen from among the Board of Directors.
Section 3.02. Term. Subject to the provisions of Section
3.03 hereof, all officers shall be elected or appointed to hold
office until the meeting of the Board of Directors following the
next Annual Meeting of shareholders, and each officer shall hold
office for the term for which he is elected or appointed and
until his successor has been elected or appointed and qualified.
The Board may require any Officer to give security for the
faithful performance of his duties.
Section 3.03. Removal. Any Officer elected or appointed by
the Board of Directors may be removed by the Board with or
without cause.
The removal of an Officer without cause shall be without
prejudice to his contract rights, if any. The election or
appointment of an Officer shall not of itself create contract
rights.
Section 3.04. Authority. Any Director or such other person
as may be designated by the Board of Directors, and in the
absence of such Director or other person, the President shall be
the Chief Executive Officer of the Corporation. The Chairman
shall oversee the general operations of the Corporation and set
company policy which would be implemented, interpreted and
carried out by the President and Chief Executive Officer who will
report directly to the Chairman. The Chairman shall preside at
all meetings of the Board of Directors unless some other person
is designated by the Board.
Section 3.05. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers or notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the President or any Vice-President and any
such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of
security holders of any Corporation in which the Corporation may
own securities and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
ARTICLE IV
Capital Stock
Section 4.01. Stock Certificates. The shares of the
Corporation shall be represented by certificates signed by the
Chairman of the Board or the President or a Vice-President and
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation, and may be sealed with
the seal of the Corporation or a facsimile thereof. The
signatures of the Officers upon a certificate may be facsimiles
if the certificate is countersigned by a transfer agent or
registered by a registrar other than the Corporation itself or
its employee. In case any Officer who has signed or whose
facsimile signature has been placed upon a 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 issue.
Each certificate representing shares shall also set fort
such additional material as is required by subdivisions (b) and
(c) of Section 508 of the Business Corporation Law.
Section 4.02. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by the laws of the State of
New York and in these By-Laws Transfers of stock shall be made
on the books of the Corporation only by the person named in the
certificate or by attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be
canceled before the new certificate shall be issued.
Section 4.03. Registered Holders. The Corporation shall be
entitled to treat and shall be protected in treating the persons
in whose names shares or any warrants, rights or options stand on
the record of shareholders, warrant holders, right holders or
option holders, as the case may be, as the owners thereof for all
purposes and shall not be bound to recognize any equitable or
other claim to, or interest in, any such share, warrant, right or
option on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly
provided otherwise by the Statutes of the State of New York.
Section 4.04. New Certificates. The Corporation may issue
a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Directors may, in their discretion, require
the owner of the lost, stolen or destroyed certificate, or his
legal representatives, to give the Corporation a bond sufficient
(in the judgment of the Directors) to indemnify the Corporation
against any claim that may be made against it on account of the
alleged loss or theft of any such certificate or the issuance of
such new certificate. A new certificate may be issued without
requiring any bond when, in the judgment of the Directors, it is
proper so to do.
ARTICLE V
Financial Notices to Shareholders
Section 5.01. Dividends. When any dividend is paid or any
other distribution is made, in whole or in part, from sources
other than earned surplus, it shall be accompanied by a written
notice (1) disclosing the amounts by which such dividend or
distribution affects stated capital, capital surplus and earned
surplus, or (2) if such amounts are not determinable at the time
of such notice, disclosing the approximate effect of such
dividend or distribution upon stated capital, capital surplus and
earned surplus and stating that such amounts are not yet
determinable.
Section 5.02. Share Distribution and Changes. Every
distribution to shareholders of certificates representing a share
distribution or a change of shares which affects stated capital,
capital surplus or earned surplus shall be accompanied by a
written notice (1) disclosing the amounts by which such
distribution or change affects stated capital, capital surplus or
earned surplus, or (2) if such amounts are not determinable at
the time of such notice, disclosing the approximate effect of
such distribution or change upon stated capital, capital surplus
and earned surplus and stating that such amounts are not yet
determinable.
When issued shares are changed in any manner which affects
stated capital, capital surplus or earned surplus, and no
distribution to shareholders of certificates representing any
shares resulting from such change is made, disclosure of the
effect of such change upon the stated capital, capital surplus
and earned surplus shall be made in the next financial statement
covering the period in which such change is made that is
furnished by the Corporation to holders of shares of the class or
series so changed or, if practicable, in the first notice of
dividend or share distribution or change that is furnished to
such shareholders between the date of the change and shares and
the next such financial statement, and in any event within six
months of the date of such change.
Section 5.03. Cancellation of Reacquired Shares. When
reacquired shares other than converted shares are canceled, the
stated capital of the Corporation shall be reduced by the amount
of stated capital then represented by such shares plus any stated
capital not theretofore allocated to any designated class or
series which is thereupon allocated to the shares canceled. The
amount by which stated capital has been reduced by cancellation
of required shares during a stated period of time shall be
disclosed in the next financial statement covering such period
that is furnished by the Corporation to all its shareholders or,
if practicable, in the first notice of dividend or share
distribution that is furnished to the holders of each class or
series of its shares between the end of the period and the next
such financial statement, and in any event to all its
shareholders within six months of the date of the reduction of
capital.
Section 5.04. Reduction of Stated Capital. When a
reduction of stated capital has been effected under Section 516
of the Business Corporation Law, the amount of such reduction
shall be disclosed in the next financial statement covering the
period in which such reduction is made that is furnished by the
Corporation to all its shareholders or, if practicable, in the
first notice of dividend or share distribution that is furnished
to the holders of each class or series of its shares between the
date of such reduction and the next such financial statement, and
in any event to all its shareholders within six months of the
date of such reduction.
Section 5.05. Application of Capital Surplus to Elimination
of a Deficit. Whenever the Corporation shall apply any part or
all of its capital surplus to the elimination of any deficit in
the earned surplus account, such application shall be disclosed
in the next financial statement covering the period in which such
elimination is made that is furnished by the Corporation to all
its shareholders or, if practicable, in the first notice of
dividend or share distribution that is furnished to holders of
each class or series of its shares between the date of such
elimination and the next such financial statement, and in any
event to all its shareholders within six months of the date of
such action.
Section 5.06. Conversion of Shares. Should the Corporation
issue any convertible shares, then, when shares have been
converted, disclosure of the conversion of shares during a stated
period of time and its effect, if any, upon stated capital shall
be made in the next financial statement covering such period that
is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share
distribution that is furnished to the holders of each class or
series of its shares between the end of such period and the next
financial statement, and in any event to all its shareholders
within six months of the date of the conversion of shares.
ARTICLE VI
Indemnification
Section 6.01. Right to Indemnification. The Corporation
shall indemnify, defend and hold harmless any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or other, including
appeals, by reason of the fact that he is or was a Director,
Officer or employee of the Corporation, or is or was serving at
the request of the Corporation as a Director, Officer or employee
of any Corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a Director, Officer or employee or in any
other capacity while serving as a Director, Officer or employee,
to the fullest extent authorized by the New York Business
Corporation Law, as the same exists or may hereafter be amended,
against all expenses, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith; provided,
however, that except as provided in Section 6.02 hereof with
respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part
thereof) was authorized by the Board of Directors of the
Corporation.
The right to indemnification conferred in this Article shall
be a contract right and shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that if
required by law at the time of such payment, the payment of such
expenses incurred by a Director or Officer in his capacity as a
Director or Officer (and not in any other capacity in which
service was or is rendered by such person while a Director or
Officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such Director or Officer,
to repay all amounts so advanced if it should be determined
ultimately that such Director or Officer is not entitled to be
indemnified under this Section or otherwise.
"Employee" as used herein, includes both an active employee
in the Corporation's service, as well as a retired employee who
is or has been a party to a written agreement under which he
might be, or might have been, obligated to render services to the
Corporation.
Section 6.02. Right of Claimant to Bring Suit. If a claim
under Section 6.01 is not paid in full by the Corporation within
sixty (60) days or, in cases of advances of expenses, twenty (20)
days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to
enforce claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the New York Business Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defence shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of
conduct set forth in the New York Business Law, nor an actual
determination by the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) that
the claimant had not met such applicable standard of conduct
shall be a defense to the action or create a presumption that
claimant had not met the applicable standard of conduct. The
Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Article that the procedures
and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such proceeding that the
Corporation is bound by all provisions of this Article.
Section 6.03. Nonexclusiveness. The indemnification and
advances of expenses granted pursuant to, or provided by, this
Article shall not be deemed exclusive of any other rights to
which a Director or Officer seeking indemnification or
advancement or expenses may be entitled, whether contained in the
Certificate of Incorporation or these By-Laws, and the Board of
Directors is authorized, from time to time in its discretion, to
enter into agreements with one or more Directors, Officers and
other persons providing for the maximum indemnification allowed
by applicable law.
The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final
disposition conferred in this Article (a) shall apply to acts or
omissions antedating the adoption of this By-Law, (b) shall be
severable, (c) shall not be exclusive of other rights to which
any Director, Officer or employee may now or hereafter become
entitled apart from this Article, (d) shall continue as to a
person who has ceased to be such Director, Officer or employee
and (e) shall inure to the benefit of the heirs, Executors and
Administrators of such a person.
Section 6.04. Insurance for Indemnification of Directors
and Officers. The Corporation shall have the power to purchase
and maintain insurance (a) to indemnify the Corporation for any
obligations which it incurs as the result of the indemnification
of Directors and Officers under the provisions of this Article;
(b) to indemnify Directors and Officers in instances which they
may be indemnified by the Corporation under the provisions of
this Article; and (c) to indemnify Directors and Officers in
instances in which they may not otherwise be indemnified by the
Corporation under the provisions of this Article, provided the
contract of insurance covering such Directors and Officers
provides, in a manner acceptable to the Superintendent of
Insurance of the State of New York, for a retention amount and
for co-insurance.
No insurance under the preceding paragraph of this Section
may provide for any payment, other than the cost of defense, to
or on behalf of any Director of Officer: (i) if a judgment or
other final adjudication adverse to the insured Director or
Officer establishes that his acts of active and deliberate
dishonesty were material to the cause of action so adjudicated or
that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled, or (ii) in
relation to any risk the insurance of which is prohibited under
the insurance laws of the State of New York.
ARTICLE VII
Miscellaneous
Section 7.01. Offices. The principal office of the
Corporation shall be in the City of New York, County of New York,
State of New York. The Corporation may also have offices at
other places, within and/or without the State of New York.
Section 7.02. Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
incorporation and the words "Corporate Seal of New York".
Section 7.03. Checks. All checks or demands for money
shall be signed by such person or persons as the Board of
Directors may from time to time determine.
Section 7.04. Fiscal Year. The fiscal year of the
Corporation shall begin on the 1st day of July in each year and
shall end on the 30th day of June of the ensuing year and the
first fiscal year shall end on June 30, 1969.
Section 7.05. Books and Records. The Corporation shall
keep correct and complete books and records of accounts and shall
keep minutes of the proceedings of its shareholders, Board of
Directors and Executive Committee, if any, and shall keep at the
office of the Corporation in New York State or at the office of
its transfer agent or registrar in New York State, a record
containing the names and addresses of all shareholders, the
number and class of shares held by each and the dates when they
respectively became the owners of record thereof. Any of the
foregoing books, minutes or records may be in written form or in
any other form capable of being converted into written form
within a reasonable time.
Section 7.6. Duty of Directors and Officers. Directors and
Officers shall discharge the duties of their respective positions
in good faith and with that degree of diligence, care and skill
which ordinarily prudent men would exercise under similar
circumstances in like positions. In discharging their duties,
Directors and Officers, when acting in good faith, may rely upon
financial statements of the Corporation represented to them to be
correct by the President or the Officer of the Corporation having
charge of its books of accounts, or stated in a written report by
an independent public or certified public accountant or firm of
such accountants fairly to reflect the financial condition of the
Corporation.
Section 7.07. When Notice or Lapse of Time Unnecessary;
Notice Dispensed With When Delivery is Prohibited. Whenever,
under the Business Corporation Law or the Certificate of
Incorporation or the By-Law of the Corporation or by the terms of
any agreement or instrument, the Corporation or the Board of
Directors or any committee thereof is authorized to take any
action after notice to any person or persons or after the lapse
of a prescribed period of time, such action may be taken without
notice and without the lapse of such period of time, if at any
time before or after such action is completed the person or
persons entitled to such notice or entitled to participate in the
action to be taken or, in the case of a shareholder, by his
attorney-in-fact, submit a signed waiver of notice of such
requirements.
Whenever any notice or communication is required to be given
to any person by the Business Corporation Law, the Certificate of
Incorporation of the Corporation or theses By-Laws, or by the
terms of any agreement or instrument, or as a condition precedent
to taking any corporate action and communication with such person
is then unlawful under any statute of the State of New York or of
the United States or any regulation, proclamation or order issued
under said statutes, then the giving of such notice or
communication to such person shall not be required and there
shall be no duty to apply for license or other permission to do
so. Any affidavit, certificate or other instrument which is
required to be made or filed as proof of the giving of any notice
or communication required the Business Corporation Law shall, if
such notice or communication to any person is dispensed with
under this paragraph, include a statement that such notice or
communication was not given to any person with whom communication
is unlawful. Such affidavit, certificate or other instrument
shall be as effective for all purposes as though such notice or
communication had been personally given to such person.
Section 7.08. Entire Board. As used in these By-Laws, the
term "Entire Board" means the total number of Directors which the
Corporation would have if there were no vacancies.
Section 7.09. Amendment of By-Laws. These By-Laws may be
amended or repealed and new By-Laws adopted by the Board of
Directors or by vote of the holders of the shares at the time
entitled to vote of the holders of the shares at the time
entitled to vote in the election of any Directors, except that
any amendment by the Board changing the number of Directors shall
require the vote of a majority of the Entire Board and except
that any By-Laws adopted by the Board may be amended or repealed
by the shareholders entitled to vote thereon as provided in the
Business Corporation Law.
If any By-Law regulating an impending election of Directors
is adopted, amended or repealed by the Board, the shall be set
forth in the notice of the next meeting of shareholders for the
election of Directors the By-Law so adopted, amended or repealed,
together with a concise statement of the changes made.
Section 7.10 Nonapplication of North Carolina Shareholder
Protection Act. The provisions of North Carolina General
Statutes 55-75 through 55-79 shall not be applicable to this
Corporation.
Section 7.11. Section Headings. The Headings to the
Articles and Sections of these By-Laws have been inserted for
convenience of reference only and shall not be deemed to be a
part of these By-Laws.